California Case Summaries: Monthly™
Look Smart & Save Time™
Every California Civil & Family Law Case Published in March 2019
By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee at ADR Services, Inc.
Civil Trial Lawyer | National ABOTA Board Member | Ca. Attorney since 1980
For ADR Services, Inc. scheduling, contact my case manager Christopher Schuster Phone: (619) 233-1323 Email: christopher@adrservices.com
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CALIFORNIA SUPREME COURT
Employment
Cal Fire Local 2881 v. Cal. Pub. Employees’ Retirement System (2019) _ Cal.5th _ , 2019 WL 1008413: The California Supreme Court affirmed the decisions of the Court of Appeal and the trial court that concluded that the California Public Employees’ Pension Reform Act of 2013’s (PEPRA; Stats. 2012, ch. 296, § 15; see Government Code, sections 7222 et seq.) elimination of the opportunity to purchase additional retirement service (ARS) credit did not violate the Constitution. The California Supreme Court ruled that the opportunity to purchase ARS credit was not a right protected by the contract clause. There was no indication in the statute conferring the opportunity to purchase ARS credit that the Legislature intended to create contractual rights. Unlike core pension rights, the opportunity to purchase ARS credit was not granted to public employees as deferred compensation for their work, and the Court found no other basis for concluding that the opportunity to purchase ARS credit was protected by the contract clause. In the absence of constitutional protection, the opportunity to purchase ARS credit could be altered or eliminated at the discretion of the Legislature. (March 4, 2019.)
Government
Cal Fire Local 2881 v. Cal. Pub. Employees’ Retirement System (2019) _ Cal.5th _ , 2019 WL 1008413: See summary above under Employment.
Taxes
McClain v. Sav-On Drugs (2019) _ Cal.5th _ , 2019 WL 1008048: The California Supreme Court affirmed the decision of the Court of Appeal affirming the trial court’s order sustaining a demurrer, without leave to amend, to a complaint filed on behalf of customers who had paid sales tax reimbursement on purchases they believed to be exempt from sales tax. Plaintiffs filed suit to compel the retailers to seek a tax refund from the California Department of Tax and Fee Administration (Department) when there had been no determination by the Department or a court that the purchases were exempt. The California Supreme Court declined to extend the remedy allowed in Javor v. State Bd. of Equalization (1974) 12 Cal.3d 790, 800 in this case. (March 4, 2019.)
CALIFORNIA COURTS OF APPEAL
Appeal
Marriage of Wong (2019) _ Cal.App.5th _ , 2019 WL 1074542: See summary below under Family Law.
Arbitration
Bravo v. RADC Enterprises, Inc. (2019) _ Cal.App.5th _ , 2019 WL 1417852: The Court of Appeal affirmed in part and reversed in part the trial court’s order regarding defendants motion to compel arbitration. The trial court properly severed and stayed the PAGA claims. The trial court properly compelled arbitration on three of plaintiff’s individual claims. The Court of Appeal reversed the portion of the trial court order denying the motion to compel as to plaintiff’s remaining six individual claims by plaintiff on the basis that California Labor Code section 229 prohibited arbitration of those wage claims. The Court of Appeal ruled that the California choice of law provision in the arbitration agreement required that all of plaintiff’s individual claims be arbitrated. (C.A. 2nd, March 29, 2019.)
Jackpot Harvesting, Inc. v. Applied Underwriters, Inc. (2019) _ Cal.App.5th _ , 2019 WL 1396749: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration. Plaintiff, who purchased workers’ compensation insurance from defendant, sued defendant alleging violations by defendant of the California Insurance Code. The trial court properly denied the motion to compel arbitration on the basis that it had authority to decide that issue, and the arbitration agreement was invalid under California law. Defendants violated California law when they issued a Request to Bind form without first submitting it for regulatory approval. (C.A. 6th, March 28, 2019.)
Juen v. Alain Pinel Realtors, Inc. (2019) _ Cal.App.5th _ , 2019 WL 460139: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration in a putative class action for plaintiffs who had used defendant in a transaction to buy or sell a home in California and had utilized TransactionPoint, a real estate software program developed by Fidelity National Financial, Inc. Defendants moved to compel arbitration, relying on the arbitration clause in plaintiff’s residential listing agreement with defendant Alain Pinel Realtors (Pinel). The original agreement was destroyed under the document retention policy of Pinel. The trial court properly denied the motion because defendants failed to prove that defendant Pinel signed the arbitration clause. (C.A. 6th, filed February 6, 2019, published March 6, 2019.)
Nieto v. Fresno Beverage Company, Inc. (2019) _ Cal.App.5th _ , 2019 WL 1305459: The Court of Appeal affirmed the trial court’s order denying defendant’s petition to compel arbitration in a putative wage and hour class action. The trial court properly ruled that plaintiff’s employment came within a statutory exemption to the Federal Arbitration Act (9 U.S.C., section 1 et seq.) granted to transportation workers engaged in interstate commerce. (C.A. 5th, filed March 7, 2019, published March 22, 2019.)
Salgado v. Carrows Restaurants Inc. (2019) _ Cal.App.5th _ , 2019 WL 926495: The Court of Appeal reversed the trial court’s order denying defendant’s motion to compel arbitration. The trial court erred when it found that defendants had failed to demonstrate that the arbitration agreement applied to the suit that was filed before the arbitration agreement was signed. The Court of Appeal ruled that the arbitration agreement applied to the action. The matter was remanded to the trial court to determine whether defendant knew or should have known that plaintiff was represented by counsel when she signed the arbitration agreement. Depending upon the finding, the trial court should then determine whether the arbitration agreement was enforceable. (C.A. 2nd, filed February 26, 2019, published March 25, 2019.)
Zakaryan v. The Men’s Warehouse, Inc. (2019) _ Cal.App.5th _ , 2019 WL 1397034: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration in a putative class action PAGA case where the employee plaintiff had agreed to arbitrate their individual claims. For reasons different than those expressed in Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705 (Lawson), the Court of Appeal ruled that courts may not split a solitary PAGA claim and send it to two different forums. NOTE: The Lawson decision is currently under review by the California Supreme Court (review granted Mar. 21, 2018, S246711). (C.A. 2nd, March 28, 2019.)
Attorney Fees
Richmond Compassionate Care Collective v. 7 Stars Holistic Found (2019) _ Cal.App.5th _ , 2019 WL 1218755: The Court of Appeal affirmed the trial court’s award of attorney fees and costs to a defendant who was partly successful in their anti-SLAPP motion to strike a complaint alleging violation of the Cartwright Act. The Court of Appeal affirmed the trial court’s order awarding attorney fees totaling of $23,120 and costs of $688.12. The Court of Appeal ruled there is no conflict between the Cartwright Act and the anti-SLAPP statute, and both could be applied. (C.A. 1st, March 15, 2019.)
Attorneys
Connelly v. Bornstein (2019) _ Cal.App.5th _ , 2019 WL 1397485: The Court of Appeal affirmed the trial court’s order granting defendant law firm’s motion for judgment on the pleadings in a malicious prosecution case filed after the defendant law firm’s client dismissed an unlawful detainer action. On an issue where the Courts of Appeal are divided, the First District Court of Appeal ruled that the statute of limitations for a malicious prosecution action against a lawyer is one year under Code of Civil Procedure section 340.6. (C.A. 1st, March 28, 2019.)
Jarvis v. Jarvis (2019) _ Cal.App.5th _ , 2019 WL 1254013: See summary below under Partnerships.
Business
Farmers & Merchants Trust Co. v. Vanetik (2019) _ Cal.App.5th _ , 2019 WL 1375759: The Court of Appeal affirmed in part and reversed in part a verdict awarding compensatory and punitive damages in an action arising from a business investment of $750,000. The Court of Appeal held that substantial evidence supported the jury’s verdict against defendants Yuri Vanetik (Yuri) and Tony Vanetik (Tony), the claims for breach of written contract, breach of oral contract, and fraud. The jury’s special verdict findings on the contract and fraud claims neither resulted in inconsistent verdicts, nor required plaintiff to make an election of remedies. Plaintiff, however, failed to offer substantial evidence supporting the punitive damages awards against Tony and Yuri, and they were reversed. The trial court properly granted a judgment notwithstanding the verdict in favor of defendant law firms Weed & Company, L.C. and Weed & Company LLP (Weed defendants) on the fraud causes of action. The Court of Appeal also affirmed the attorney fee award to plaintiff, and the attorney fee award to the Weed defendants. (C.A. 4th, filed February 27, 2019, published March 27, 2019.)
Civil Code
Chen v. Berenjian (2019) _ Cal.App.5th _ , 2019 WL 1397592: The Court of Appeal reversed the trial court’s order sustaining a demurrer[1] to a complaint for fraudulent transfer under the Uniform Voidable Transactions Act (Civil Code, section 3439 et seq.). Plaintiff alleged that defendant brothers had attempted to thwart plaintiff’s attempts to execute on his judgments against one brother by colluding in a sham lawsuit, stipulating to a judgment, and allowing the other brother to execute on the judgment. The trial court found the action was barred by the litigation privilege in Civil Code section 47(b). The Court of Appeal disagreed, ruling that section 47(b) did not bar the action because the gravamen of the cause of action was the noncommunicative act of transferring assets by executing on a judgment. (C.A. 4th, March 28, 2019.)
Civil Procedure
CA Dept. of Finance v. City of Merced (2019) _ Cal.App.5th _ , 2019 WL 1306386: The Court of Appeal affirmed the trial court’s orders granting petitioner’s writ petition to compel respondent to transfer money to petitioner due to the dissolution of respondent’s redevelopment agency, and striking a cross-complaint that respondent filed after it filed its answer but without obtaining leave of court. Respondent participated in the due diligence review (DDR) process of petitioner, but it never challenged the transfer decision by filing a mandamus action. Respondent’s answer and affirmative defenses filed in this case did not properly raise any issues about the correctness of the DDR determination. The trial court properly struck the cross-complaint because it was filed after the answer was filed without first obtaining leave of court. Because both parties agreed that the amount to be transferred should not include $491,815 in bond proceeds, the Court of Appeal directed the trial court to recall the writ and modify the judgment to issue a new writ specifying the exact dollar amount to be transferred. (C.A. 3rd, March 22, 2019.)
Richmond Compassionate Care Collective v. 7 Stars Holistic Found (2019) _ Cal.App.5th _ , 2019 WL 1218755: See summary above under Attorney Fees.
Sass v. Cohen (2019) _ Cal.App.5th _ , 2019 WL 1070839: The Court of Appeal reversed the trial court’s order denying a motion to vacate a default judgment and reversed the trial court’s default judgment awarding plaintiff compensatory damages of $2,806,532 in an action for an accounting arising from the alleged breach of a Marvin agreement because the judgment exceeded the $987,500 in compensatory damages specified in the complaint. The Court of Appeal stated it was joining the growing majority of cases rejecting the decision in Cassel v. Sullivan, Roche & Johnson (1999) 76 Cal.App.4th 1157. In comparing the default judgment to the complaint, a trial court should compare the total compensatory relief granted by the default judgment to the total compensatory relief demanded in the operative pleadings. The complaint requested either $3,837,500 in damages, or $987,500 in damages plus a constructive trust over a house on Oakley Drive in Los Angeles (the Oakley house). The default judgment awarded plaintiff $2,806,532 in compensatory damages plus a constructive trust over the Oakley house, therefore exceeding the amount of compensatory damages demanded in the complaint by $1,819,032. The Court of Appeal ruled that the default judgment was void to the extent of that overage, but the default judgment’s remaining awards were valid. (C.A. 2nd, March 7, 2019.)
Shrewsbury Management, Inc. v. Superior Court (2019) _ Cal.App.5th _ , 2019 WL 1109754: The Court of Appeal reversed the trial court’s order denying plaintiff judgment creditor’s motion for an order directing Wells Fargo Bank to comply with a subpoena duces tecum requesting it to produce bank records for two entities over which the judgment debtor allegedly had signatory authority. The Court of Appeal ruled that a subpoena duces tecum may be issued to a third party in connection with a judgment debtor examination under Code of Civil Procedure section 708.110, and it issued a preemptory writ of mandate directing the trial court to vacate its order denying plaintiff’s motion and to conduct further proceedings to reconsider plaintiff’s motion. (C.A. 6th, March 11, 2019.)
Whyenlee Industries Ltd. v. Super. Ct. (2019) _ Cal.App.5th _ , 2019 WL 1323930: The Court of Appeal denied a petition for writ of mandate seeking to reverse the trial court’s order denying a motion to quash service of summons. The Court of Appeal ruled that, under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638), plaintiffs were permitted to use an agent to serve defendant personally in Hong Kong without first making a request to Hong Kong’s Central Authority. (C.A. 1st, March 22, 2019.)
Class Actions
Myers v. Raley’s (2019) _ Cal.App.5th _ , 2019 WL 1123687: The Court of Appeal reversed the trial court’s order denying class certification in a wage and hour putative class action. The Court of Appeal found that the trial court parroted the ultimate finding needed to deny certification but did not provide any insight into its analytic route in reaching that finding. By not providing the reasons for its ultimate finding, it foreclosed the type of review dictated by the standard of review of a denial of class certification. A trial court cannot stymie appellate review by simply remaining mute and thereby failing to reveal whether it used either improper criteria or an incorrect legal analysis. The Court of Appeal remanded the case back to the trial court for reconsideration in light of Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522 and Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986 and for a statement of reasons to ensure the trial court does not employ improper criteria or rely on erroneous legal assumptions. (C.A. 3rd, filed February 12, 2019, published March 12, 2019.)
Rel v. Pacific Bell Mobile Services (2019) _ Cal.App.5th _ , 2019 WL 1416624: The Court of Appeal affirmed the trial court’s order granting dismissal of class action lawsuits for failure to bring the cases to trial within five years as required by Code of Civil Procedure section 583.310. Ruling on issues of first impression, the Court of Appeal held that a pretrial death knell order dismissing the class claims does not qualify as a trial for purposes of the five-year dismissal statute, and an appellate decision reversing a death knell order does not trigger a three-year extension under section 583.320(a)(3). (C.A. 1st, March 29, 2019.)
Commercial Code
Ron Miller Enterprises, Inc. v. Lobel Fin. Corp., Inc. (2019) _ Cal.App.5th _ , 2019 WL 642956: The Court of Appeal reversed the trial court’s ruling in favor of defendant on plaintiff’s declaratory relief claim seeking payment by defendant (for unpaid flooring loans made to two used car dealerships) before plaintiff turned over certificates of title to used cars to defendant. Plaintiff made short-term loans to two automobile dealers, also known as flooring loans, and took possession of each vehicle’s title certificate as security for the loan advance. Plaintiff lost its inventory security interests when the used cars were sold by the dealerships and defendant purchased the conditional sales contracts from the dealerships. However, the Court of Appeal ruled that Quartz of Southern California, Inc. v. Mullen Bros., Inc. (2007) 151 Cal.App.4th 901 applied to this case, and therefore defendant was required to pay plaintiff to acquire the certificates of title held by plaintiff. (C.A. 5th, filed February 15, 2019, published March 14, 2019.)
Construction
Centex Homes v. R-Help Construction Co., Inc. (2019) _ Cal.App.5th _ , 2019 WL 1109627: The Court of Appeal reversed the judgment in favor of defendant, following a jury trial, on the issue of whether defendant subcontractor was obligated to indemnify plaintiff developer for third-party injuries related to defendant’s work installing utility boxes. The subcontract contained a clause requiring the subcontractor to indemnify the developer for all claims arising out of the subcontractor’s work. It also contained a clause requiring the subcontractor to obtain insurance with the developer named as an insured. Defendant did not defend plaintiff and did not obtain insurance covering plaintiff. The trial court submitted the question of defendant’s duty to defend to the jury, and the jury found plaintiff’s injuries were not caused by defendant’s work. The Court of Appeal ruled that, when a plaintiff in an underlying tort action alleges that his injuries arose out of the subcontractor’s work, the developer is entitled as a matter of law to a defense under the indemnity clause. It was error to submit the question of the subcontractor’s duty to defend to a jury. The Court of Appeal also ruled that the developer was entitled to a jury trial in its action for damages alleging breach of the covenant to provide insurance. (C.A. 2nd, March 11, 2019.)
Synergy Project Management, Inc. v. City and County of S.F. (2019) _ Cal.App.5th _ , 2019 WL 1198378: The Court of Appeal reversed the trial court’s order granting a petition for a writ of administrative mandate overturning a hearing officer’s determination that petitioner’s (the public work job subcontractor) poor performance established a statutory ground for substitution under section 4107(a) of the Subletting and Subcontracting Fair Practices Act (Public Contract Code, section 4100 et seq.). In this case, the city directed the prime contractor to substitute the subcontractor. The trial court erred in finding the hearing officer lacked jurisdiction because the prime contractor had not made a “request” for substitution under section 4107(a). Although the statute contemplates that the prime contractor will normally be the party to seek substitution, the procedure followed here complied in substance with every reasonable objective of the statute. (C.A. 1st, March 14, 2019.)
Consumer Protection
Valdez v. Seidner-Miller, Inc. (2019) _ Cal.App.5th _ , 2019 WL 1375261: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment in an action by plaintiff alleging violations of the Consumer Legal Remedies Act (CLRA; Civil Code, section 1750 et seq.), the unfair competition law (UCL; Business & Professions Code, section 17200 et seq.), Civil Code section 16321, and fraud in connection with the lease of a vehicle. The trial court, relying on Benson v. Southern California Auto Sales, Inc. (2015) 239 Cal.App.4th 1198, 1205 (Benson), ruled that defendant made a timely and “appropriate” offer to correct the alleged CLRA violations, and this barred the CLRA claims as well as the others. The Court of Appeal found defendant’s offer was timely but inappropriate. Disagreeing with Benson, the Court of Appeal ruled that, where a business conditions its offer to remedy a violation of the CLRA on the consumer waiving his or her right to injunctive relief and remedies under other statutes and common law, the offer is not an appropriate correction offer as contemplated by Civil Code section 1782(b) and does not bar a lawsuit by the consumer. (C.A. 2nd, March 27, 2019.)
Contracts
Zakk v. Diesel (2019) _ Cal.App.5th _ , 2019 WL 1349530: The Court of Appeal reversed in part and affirmed in part the trial court’s orders finding that the third amended complaint was a sham pleading, that the breach of oral contract claim (and its derivative claims) were barred by the statute of frauds, that the quantum meruit claim was barred by the statute of limitations, and dismissed the claim for promissory estoppel because it was added without leave of court. Plaintiff sued for breach of an oral contract, breach of an implied-in-fact contract, intentional interference with contractual relations, quantum meruit, promissory estoppel, and declaratory relief alleging that he was entitled to be paid and receive an executive producer credit for a film that was a sequel to a film he had worked on and developed. The Court of Appeal ruled that the promisee’s full performance of all of his or her obligations under the contract took the contract out of the statute of frauds, no further showing of estoppel was required, and plaintiff’s allegation that he fully performed his obligations under the alleged oral contract was enough to avoid the statute of frauds. The trial court also erred in finding the third amended complaint was a sham pleading, and that the statute of limitations barred plaintiff’s quantum meruit claim. However, the trial court properly dismissed the promissory estoppel claim. (C.A. 2nd, March 25, 2019.)
Elections
Boyer v. Ventura County (2019) _ Cal.App.5th _ , 2019 WL 1236050: The Court of Appeal affirmed the trial court’s order denying petitioner’s writ petition against respondents seeking them to put petitioner on the June 5, 2018 Primary Election ballot for county sheriff. The Court of Appeal ruled that Government Code section 24004.3, which provides that a candidate for sheriff must possess one of five combinations of education and law-enforcement experience, was constitutional. (C.A. 2nd, March 18, 2019.)
Southcott v. Julian-Cuyamaca Fire Protection Dist. (2019) _ Cal.App.5th _ , 2019 WL 1075256: See summary below under Government.
Employment
Bravo v. RADC Enterprises, Inc. (2019) _ Cal.App.5th _ , 2019 WL 1417852: See summary above under Arbitration.
Nieto v. Fresno Beverage Company, Inc. (2019) _ Cal.App.5th _ , 2019 WL 1305459: See summary above under Arbitration.
Retired Oakland Police etc. v. Oakland Police and Fire etc. (2019) _ Cal.App.5th _ , 2019 WL 1275346: See summary below under Government.
Su v. Stephen S. Wise Temple (2019) _ Cal.App.5th _ , 2019 WL 1091112: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment on the basis that plaintiff’s action for wage and hour law violations regarding preschool teachers employed by defendant was barred by the “ministerial exception.” The Court of Appeal ruled that, while defendant’s preschool curriculum had both secular and religious content, its teachers were not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to defendant’s theology. Moreover, defendant did not refer to its teachers as “ministers” or the equivalent, nor did the teachers refer to themselves as such. Accordingly, the teachers were not “ministers” for purposes of the ministerial exception. (C.A. 2nd, March 8, 2019.)
Environment
Ione Valley Land, Air, and Water etc. v. County of Amador (2019) _ Cal.App.5th _ , 2019 WL 1275354: The Court of Appeal affirmed the trial court’s order denying a writ petition challenging the approval of a project to develop an aggregate quarry and related facilities. The writ petition alleged that the approval violated the California Environmental Quality Act (CEQA). In 2012, petitioners filed an earlier writ petition alleging CEQA violations, and the trial court granted that petition as to traffic impacts because the 2012 draft Environmental Impact Report (EIR) did not accurately portray the data from the traffic impact study and did not disclose traffic information in a manner reasonably calculated to inform the public and decision-makers. After this, respondent issued a partially recirculated draft EIR in 2014, certified the partially recirculated EIR, and again approved the project. Petitioner then filed this writ petition, again challenging the project approval. The Court of Appeal ruled that arguments relating to any impacts other than traffic impacts were precluded by res judicata, and petitioner had failed to establish that CEQA statutes and guidelines required reversal as to the traffic impacts. (C.A. 3rd, filed February 26, 2019, published March 20, 2019.)
South of Market Community etc. v. City and County of San Francisco (2019) _ Cal.App.5th _ , 2019 WL 1325692: The Court of Appeal affirmed the trial court’s denial of a petition for writ of administrative mandate alleging California Environmental Quality Act (CEQA) violations and seeking to set aside certification of the final environmental impact report (EIR) and approval of a development project in San Francisco. Petitioners’ numerous claims failed to demonstrate any CEQA violations. (C.A. 1st, filed February 22, 2019, published March 25, 2019.)
Family Law
Herriott v. Herriott (2019) _ Cal.App.5th _ , 2019 WL 1275100: The Court of Appeal affirmed the trial court’s orders granting restraining orders requested by a divorced, elderly couple who continued to reside in the same building after dissolving their marriage and who have a documented history of legal actions, complaints, and issues against one another. The trial court properly granted the wife’s request for a domestic violence restraining order under the Family Code, and properly granted the former husband’s request for an elder abuse restraining order under the Welfare and Institutions Code. (C.A. 2nd, March 20, 2019.)
In re the Marriage of C.T. and R.B. (2019) _ Cal.App.5th _ , 2019 WL 1253362: The Court of Appeal reversed the trial court’s order awarding custody of the 12-year-old son A.B. from the mother C.T., who lives in California, to the father R.B., who lives in Arkansas. A.B. lived with mother since his birth in 2006. Mother and father separated in 2007. The trial court entered a final child custody order in 2010, with mother’s home ordered A.B.’s primary residence. In 2011, father moved from California to Arkansas and has been living there since then with his parents. The Court of Appeal ruled that the trial court erred because father failed to meet his burden of establishing that moving A.B. to Arkansas would not cause detriment to A.B., and that the change in physical custody was in A.B.’s best interests. (C.A. 4th, March 19, 2019.)
Marriage of Brooks (2019) _ Cal.App.5th _ , 2019 WL 1374322: The Court of Appeal affirmed the trial court’s order regarding stock appreciation. The husband owned stock in a business he started before the marriage. The trial court properly applied the Van Camp v. Van Camp (1921) 53 Cal.App. 17 formula to apportion the appreciation of the stock during the marriage and characterized the increased value of the stock after marriage as a return on husband’s separate property because husband did not contribute to the growth of the business after the date of marriage. (C.A. 6th, March 27, 2019.)
Marriage of Martin (2019) _ Cal.App.5th _ , 2019 WL 1109494: The Court of Appeal reversed the trial court’s postjudgment order requiring the wife to repay the husband $27,000 for spousal support payments made after wife’s remarriage plus $2,700 in attorney fees. Husband had a written agreement with wife to pay her spousal support for four years. The Court of Appeal ruled that husband waived section 4337 by failing to check the box on form SB-12035 (modeled after form FL-343). The trial court erred because the parties had agreed in writing that Family Code section 4337 would not apply. (C.A. 4th, March 11, 2019.)
Marriage of Oliverez (2019) _ Cal.App.5th _ , 2019 WL 969581: The Court of Appeal affirmed in part and reversed in part the judgment of the trial court. It ruled that the trial court properly exercised its discretion to order the appraisal and sale of real property, properly denied husband’s request for Epstein credits (In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85). However, the trial court erred in characterizing one piece of real property as partially husband’s separate property despite the parties’ stipulation to the contrary, and it reversed the judgment on that limited basis. (C.A. 6th, filed February 26, 2019, published March 25, 2019.)
Marriage of Wong (2019) _ Cal.App.5th _ , 2019 WL 1074542: The Court of Appeal granted in part and denied in part a motion to dismiss the appeal. The Court of Appeal ruled that the trial court’s orders on December 10, 2018 granting a preliminary injunction freezing approximately $17.5 million, and refusing an ex parte application for an order enjoining enforcement of a 1996 judgment were appealable. However, it ruled that the postjudgment discovery orders and a postjudgment joinder/substitution order were not appealable. (C.A. 4th, March 7, 2019.)
Molinaro v. Molinaro (2019) _ Cal.App.5th _ , 2019 WL 928131: The Court of Appeal reversed in part and affirmed in part the trial court’s order issuing a restraining order under the Domestic Violence Prevention Act (Family Code, § 6200 et seq.). The Court of Appeal reversed the part of the restraining order prohibiting husband from posting anything about his divorce case on Facebook because it was an overbroad, invalid restraint on his freedom of speech. (C.A. 2nd, filed February 26, 2019, published March 29, 2019.)
Sass v. Cohen (2019) _ Cal.App.5th _ , 2019 WL 1070839: See summary above under Civil Procedure.
Government
1305 Ingraham v. City of Los Angeles (2019) _ Cal.App.5th _ , 2019 WL 1123512: The Court of Appeal affirmed the trial court’s order sustaining demurrers, without leave to amend, to an amended writ petition challenging respondent’s approval of a development project without any hearing being held on petitioner’s administrative appeal that had challenged respondent’s project permit compliance review. The writ petition was filed nine months after respondent approved the project. The trial court properly sustained the demurrers because the writ petition was time-barred by the 90-day statute of limitations in Government Code section 65009(c)(1). (C.A. 2nd, filed February 15, 2019, published March 12, 2019.)
Boling v. Public Employment Relations Bd. (2019) _ Cal.App.5th _ , 2019 WL 1323465: After the California Supreme Court affirmed the decision of the Public Employment Relations Board (PERB) finding that the City of San Diego (City) had violated the Meyers-Milias-Brown Act (Act; Government Code, section 3500 et seq.) when the City’s mayor decided to advance a citizens’ pension reform initiative (Initiative) without meeting and conferring with the affected employees’ unions (Unions), it remanded the case to the Court of Appeal to address the appropriate judicial remedy for the violation. The Court of Appeal declined to invalidate the Initiative because it concluded the Initiative’s validity was more appropriately addressed in a separate quo warranto proceeding. PERB’s compensatory remedy was modified to order the City to meet and confer over the effects of the Initiative and to pay the affected current and former employees represented by the Unions the difference, plus seven percent annual interest, between the compensation, including retirement benefits, the employees would have received before the Initiative became effective and the compensation the employees received after the Initiative became effective. It found the City’s obligation to comply with the compensatory remedy extended until completion of the bargaining process, including the exhaustion of impasse procedures, if an impasse occurs. PERB’s cease-and-desist remedy was modified to order the City to cease and desist from refusing to meet and confer with the Unions and, instead, to meet and confer with the Unions upon the Unions’ request before placing a charter amendment on the ballot that is advanced by the City and affects employee pension benefits and/or other negotiable subjects. (C.A. 4th, March 25, 2019.)
Boyer v. Ventura County (2019) _ Cal.App.5th _ , 2019 WL 1236050: See summary above under Elections. CA Dept. of Finance v. City of Merced (2019) _ Cal.App.5th _ , 2019 WL 1306386: See summary above under Civil Procedure.
Olson v. Hornbrook Community Services Dist. (2019) _ Cal.App.5th _ , 2019 WL 1353690: The Court of Appeal reversed the trial court’s orders sustaining defendant’s demurrers to multiple complaints alleging violations of Ralph M. Brown Act (Act; Government Code, Section 54950 et seq.). Plaintiffs alleged that defendant’s Board of Directors (the Board) violated the Act by failing to adequately describe several items it acted on over the course of three district meetings and for unreasonably limiting public comment. The Court of Appeal ruled that plaintiffs’ complaints challenging the August and September 2016 agendas stated causes of action, the trial court should have granted leave to amend the claims challenging the August 2016 agenda, and the trial court erred in awarding defendant attorney fees and costs. (C.A. 3rd, March 26, 2019.)
Preven v. City of Los Angeles (2019) _ Cal.App.5th _ , 2019 WL 850978: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, to a writ petition alleging violation of the requirements of California’s open meeting law under the Ralph M. Brown Act (Brown Act; Government Code, section 54950 et seq.). The trial court’s holding that the committee exception in section 54954.3(a) applies to special meetings was error. Indeed, respondent conceded to the Court of Appeal that the committee exception applies only to regular meetings. The Court of Appeal ruled that the Brown Act does not permit limiting comment at special city council meetings based on comments at prior, distinct committee meetings. Petitioner adequately alleged a claim that he was improperly denied the opportunity to comment on the agenda item at a special meeting, and he also adequately alleged a pattern of conduct by respondent at special city council meetings in violation of the Brown Act. (C.A. 2nd, filed February 22, 2019, published March 4, 2019.)
Retired Oakland Police etc. v. Oakland Police and Fire etc. (2019) _ Cal.App.5th _ , 2019 WL 1275346: The Court of Appeal reversed the trial court’s order granting a writ of mandate in favor of petitioners directing that master police officer-terrorism pay (MPO pay) be included in the calculation of pension benefits. The Court of Appeal ruled that the trial court erred in concluding that MPO pay was “compensation attached to … rank” as required by the Oakland City Charter for inclusion in pension benefits. (C.A. 1st, filed February 25, 2019, published March 20, 2019.)
Southcott v. Julian-Cuyamaca Fire Protection Dist. (2019) _ Cal.App.5th _ , 2019 WL 1075256: The Court of Appeal affirmed the trial court’s order, following a hearing, denying a writ petition seeking an order compelling respondent district to rescind its resolution to apply to the San Diego Local Agency Formation Commission (Commission) to dissolve, or to set an election on whether the district should dissolve. The Court of Appeal ruled that respondent’s resolution was not subject to referendum because the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (Reorganization Act; Government Code, section 56000 et seq.) prescribes the exclusive method for dissolving, and/or protesting the proposed dissolution of a fire protection district, and the resolution was administrative in nature under the Reorganization Act. (C.A. 4th, March 7, 2019.)
Insurance
Ins. Co. of St. of PA v. Amer. Safety Indemnity Co. (2019) _ Cal.App.5th _ , 2019 WL 988480: The Court of Appeal affirmed the trial court’s order granting plaintiff insurance carrier’s motion for summary judgment in an action filed by plaintiff carrier, under Insurance Code section 11580, to recover from defendant insurance carrier based upon a default judgment entered against defendant’s insured (a subcontractor). Plaintiff indemnified its insured (a general contractor) for an arbitration award of more than $1.1 million that a homeowner obtained against plaintiff’s insured. Plaintiff then obtained a default judgment against defendant’s insured for $1,532,973.87, consisting of damages of $1,176,633.22 and attorney fees of $356,340.65. The Court of Appeal held the default judgment was not void. It found there was coverage in at least one of the policies issued by defendant. Moreover, the Court of Appeal refused to address arguments not raised at the time of the summary judgment motions filed by both parties. (C.A. 2nd, March 1, 2019.)
Landlord-Tenant
Bawa v. Terhune (2019) _ Cal.App.5th _ Supp., 2019 WL 1231676: The Appellate Division of the Los Angeles Superior Court reversed a judgment, based on a jury verdict, finding for defendant in an unlawful detainer action on the basis that the tenant had paid rent. The landlord rejected the rent check because it was one cent short. Because the tender of the rent check was rejected, defendant failed to pay the rent, and the judgment was not supported by the evidence. The Appellate Division also ruled that, when a landlord returns a tenant’s rent check without cashing it based on a de minimis shortage in the agreed-upon rent, a tenant may assert the landlord’s bad faith in rejecting the payment as a defense to an unlawful detainer action. The matter was remanded for a new trial. (Los Angeles Superior Court Appellate Division, filed January 30, 2019, published March 15, 2019.)
Bevis v. Terrace View Partners, LP (2019) _ Cal.App.5th _ , 2019 WL 1292404: The Court of Appeal reversed a judgment, following a jury trial, awarding plaintiffs $1,289,000 in compensatory damages ($759,000 in economic damages, $530,000 in noneconomic damages), $1,289,000 in punitive damages (after the trial court reduced the $57 million in punitive damages awarded by the jury), attorney fees of $2,385,773.70 and costs of $56,417.72. Plaintiffs were mobile home park residents who alleged intentional interference with property rights, breach of the covenant of good faith and fair dealing, nuisance (based on substantially failing to enforce the park’s rules and regulations), breach of contract/breach of the covenant of quiet enjoyment, and negligence/negligence per se. The Court of Appeal found that the vast majority of the economic damages awarded represented reimbursement for overpayment of rent and diminution in value of homes caused by high rent. However, rent may not be limited to a lower rate than a rental agreement allows in the absence of a rent-control ordinance, so the award of such damages could not be sustained under any of the alleged theories of liability. Because it was impossible to sever any properly awarded damages from improperly awarded damages, the Court of Appeal reversed the entire award of compensatory damages, punitive damages, attorney fees and costs. (C.A. 4th, filed February 28, 2019, published March 21, 2019.)
Limited Liability Companies
Boschetti v. Pacific Bay Investments Inc. (2019) _ Cal.App.5th _ , 2019 WL 1075616: See summary below under Partnerships.
Medical Malpractice
Last Frontier Healthcare Dist. v. Superior Ct. (2019) _ Cal.App.5th _ , 2019 WL 1349491: The Court of Appeal denied, as moot, petitioner hospital district’s writ petition seeking to overturn the trial court’s order granting plaintiff’s petition for relief from the claim presentation requirement in the underlying medical malpractice case. The petition became moot after the trial court, in response to an alternative writ from the Court of Appeal, issued a new order denying plaintiff’s petition for relief from the claim presentation requirement. The Court of Appeal ruled that giving notice of an intent to file a medical malpractice action under Code of Civil Procedure section 364 does not extend the jurisdictional deadlines for seeking relief from the Government Claims Act’s requirement of presenting a timely claim to a public entity before bringing an action for damages against it. (C.A. 3rd, March 26, 2019.)
Probate
Estate of Herzog (2019) _ Cal.App.5th _ , 2019 WL 1416629: The Court of Appeal affirmed the probate court’s order denying a petition for a determination that Maurene Schraff Nadj (Half Sister) was decedent’s sole heir. The probate court properly denied the petition on the basis of insufficient evidence to prove petitioner was related to decedent. (C.A. 4th, March 29, 2019.)
Nursing Care Facilities
York Healthcare & Wellness Centre v. State Dept. of Pub. Health (2019) _ Cal.App.5th Supp. _ , 2019 WL 1294449: The Appellate Division of the Los Angeles Superior Court affirmed the trial court’s order granting respondent’s motion to dismiss petitioner’s appeal of a $20,000 citation by filing a limited civil action. The trial court granted the motion because petitioner failed to timely file a case management statement (CMS) within six months of the filing of respondent’s answer. The Appellate Division ruled that if a CMS is not filed within six months of the filing of respondent’s answer, the court must grant a motion to dismiss a facility’s action appealing a citation even if a superior court’s local rule provides that a case management conference is optional. (Los Angeles Superior Court Appellate Division, filed March 8, 2019, published March 21, 2019.)
Partnerships
Boschetti v. Pacific Bay Investments Inc. (2019) _ Cal.App.5th _ , 2019 WL 1075616: The Court of Appeal affirmed the trial court’s orders ruling that it lacked authority to order dissolution of out-of-state limited partnership and limited liability company entities but for different reasons. In response to a request for dissolution of a general partnership, other parties sought to buy out the interests of dissolution-seeking parties in several out-of-state limited liability partnerships and limited liability companies that held title to some of the alleged general partnership’s properties. The Court of Appeal held the trial court lacked authority to order the buyout of foreign entities organized under the laws of Texas, Delaware, and Hawaii. (C.A. 1st, March 7, 2019.)
Jarvis v. Jarvis (2019) _ Cal.App.5th _ , 2019 WL 1254013: The Court of Appeal affirmed the trial court’s order granting a motion to disqualify lawyer William Roscoe, III, who had been hired by one partner to represent the partnership in an action brought by the other partner for partition by sale of a two-acre parcel owned by the partnership. Each partner owned a 50 percent interest in the partnership, and they could not agree on what to do about the two-acre parcel. The trial court properly granted the motion to disqualify because there was not a majority of partners in this two-partner business that agreed on hiring an attorney for the partnership. (C.A. 6th, March 19, 2019.)
Real Property
1305 Ingraham v. City of Los Angeles (2019) _ Cal.App.5th _ , 2019 WL 1123512: See summary above under Government.
Citrus El Dorado v. Chicago Title Co. (2019) _ Cal.App.5th _ , 2019 WL 1033547: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to a complaint against a trustee alleging wrongful foreclosure, wrongful disseisin and ouster, and conspiracy following a trustee sale of undeveloped real property. Neither the deed of trust nor the governing statutes expressly create a duty on the part of defendant to verify that the beneficiary received a valid assignment of the loan or to verify the authority of the person who signed the substitution of trustee. A trustee generally has no duty to take any action except on the express instruction of the parties or as expressly provided in the deed of trust and the applicable statutes. The Court of Appeal also ruled that there were insufficient facts pled to show both that there was a failure to comply with the procedural requirements for the foreclosure sale and that the irregularity prejudiced the plaintiff. Because the wrongful foreclosure claim failed, the other two causes of action that were derivative of that claim also failed. (C.A. 4th, March 5, 2019.)
JPMorgan Chase Bank, N.A. v. Ward (2019) _ Cal.App.5th _ , 2019 WL 1396740: The Court of Appeal reversed the trial court’s orders sustaining defendant’s demurrers to plaintiffs complaint. Plaintiff, the successor in interest on a deed of trust (DOT) securing a loan for $402,876 that was never recorded and was lost, sued plaintiff after plaintiff refused to re-execute and notarize a replacement DOT for purposes of recordation. The Court of Appeal ruled that plaintiff could state a viable claim for declaratory relief to restore a lost deed pursuant to Civil Code section 3415(a), and there was no statute of frauds problem with this claim because it sought to restore and enforce the DOT as written. Because the complaint could have been amended to state a viable claim, the trial court erred in sustaining the demurrer without leave to amend. (C.A. 4th, March 28, 2019.)
Juen v. Alain Pinel Realtors, Inc. (2019) _ Cal.App.5th _ , 2019 WL 460139: See summary above under Arbitration.
Settlements
Mesa RHF Partners v. City of LA (2019) _ Cal.App.5th _ , 2019 WL 1416925: The Court of Appeal affirmed, but for a different reason, the trial court’s order denying motions to enforce settlement agreements under Code of Civil Procedure section 664.6. The case involved two settlements of writ petition actions challenging the creation by ordinances of the Downtown Center Business Improvement District and the San Pedro Historic Waterfront Property and Business Improvement District. Both settlement agreements stated that the court would retain jurisdiction pursuant to Code of Civil Procedure section 664.6 to enforce the terms of agreements. The request for dismissals filed by counsel both stated that the court would retain jurisdiction pursuant to Code of Civil Procedure section 664.6 to enforce the terms agreements. The Court of Appeal ruled that a request for the trial court to retain jurisdiction under section 664.6 must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court. Because the parties had not made a written request for the court to retain jurisdiction, only their attorneys, the trial court lacked jurisdiction to rule on the motions. (C.A. 2nd, March 29, 2019.)
Taxes
Wright v. Co. of San Mateo (2019) _ Cal.App.5th _ : The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment in an action by plaintiffs contesting the denial of their request to transfer the property tax basis of their principal residence to a replacement dwelling of equal or lesser value in the same county as allowed by Revenue and Taxation Code section 69.5. Plaintiff’s request was denied because they formed a limited liability company to purchase the land on which they installed the manufactured replacement home that they purchased. Plaintiffs transferred title to themselves individually after the home was installed. The trial court erred in granting summary judgment. (C.A. 1st, March 29, 2019.)
Torts
Barenborg v. Sigma Alpha Epsilon Fraternity (2019) _ Cal.App.5th _ , 2019 WL 1253360: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in an action where plaintiff sued defendant, a national fraternity, after she was injured at a party hosted by a local chapter of the fraternity. The Court of Appeal ruled that defendant owed no duty to protect plaintiff from the actions of the local chapter and was not vicariously liable for them. (C.A. 2nd, March 19, 2019.)
Grossman v. Santa Monica-Malibu Unified School Dist. (2019) _ Cal.App.5th _ , 2019 WL 1349470: The Court of Appeal affirmed the trial court’s order granting summary judgment for the defendant school district. Plaintiff sued for serious injuries suffered when he fell off a 27-foot-tall inflatable slide while attending a carnival held at a school campus owned by the school district. The Court of Appeal ruled that the Education Code allocates liability for negligence between school districts and entities allowed to use school district grounds. A school district is “liable for an injury resulting from the negligence of the school district in the ownership and maintenance of the school facilities or grounds.” (Education Code, section 38134(i)(1).) An “entity using the school facilities or grounds … is liable for an injury resulting from the negligence of that entity during the use of the school facilities or grounds.” (Ibid.) Summary judgment was proper because plaintiff’s injuries resulted from the alleged negligence of the booster group and others during the use of the school grounds, not from the school district’s ownership and maintenance of the grounds. (C.A. 2nd, March 25, 2019.)
Johnson v. Raytheon Co. (2019) _ Cal.App.5th _ , 2019 WL 1375663: The Court of Appeal affirmed the trial court’s order granting summary judgment to two defendants in a personal injury action where plaintiff was seriously injured after he fell from a ladder at work. Plaintiff was employed by an independent contractor which provided maintenance engineering staff for defendant The Raytheon Company (Raytheon). The trial court properly granted Raytheon summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette). The trial court properly granted summary judgment to the other defendant because it owed plaintiff no duty. (C.A. 2nd, filed March 8, 2019, published March 27, 2019.)
Last Frontier Healthcare Dist. v. Superior Ct. (2019) _ Cal.App.5th _ , 2019 WL 1349491: See summary above under Medical Malpractice.
Long v. Forty Niners Football Co. (2019) _ Cal.App.5th _ , 2019 WL 1349732: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to a complaint for personal injuries suffered when plaintiff was assaulted after a professional football game. Plaintiff was injured on August 20, 2011. Plaintiff originally filed a lawsuit in the San Francisco Superior Court against the San Francisco Forty Niners, Ltd. He dismissed that lawsuit after two years and shortly before trial. Before he dismissed the first lawsuit, plaintiff sued the Delaware limited liability company, the Forty Niners Football Company, LLC, in federal district court. The federal case was later dismissed for lack of subject matter jurisdiction. On November 12, 2013, more than two years after the incident, plaintiff filed this action against defendant. Plaintiff’s claims were barred by the statute of limitations, and plaintiff failed to allege facts sufficient to show that equitable tolling would apply. (C.A. 1st, March 26, 2019.)
Water
Paradise Irrigation Dist. v. Commission on State Mandates (2019) _ Cal.App.5th _ , 2019 WL 1275114: The Court of Appeal affirmed the trial court’s order denying a writ petition that challenged the denial by the Commission on State Mandates of consolidated test claims for subvention (claims by local governments and agencies in California for reimbursement from the state for costs of complying with state mandates for which the mandate does not concomitantly provide funds to the local agency) made by water and irrigation district petitioners. The Court of Appeal ruled that petitioners possessed statutory authority to collect fees necessary to make any water service improvements mandated by the Water Conservation Act of 2009. Therefore, under Government Code section 17556(d), subvention was not available to petitioners. (C.A. 3rd, March 20, 2019.)
[1] The trial court sustained the demurrer with leave to amend, but plaintiff allowed dismissal to be entered against him and pursued the appeal.
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