California Case Summaries: Monthly™
Every California Civil & Family Law Case Published in May 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
Civil Procedure
Black Sky Capital, LLC v. Cobb (2019) _ Cal.5th _ , 2019 WL 1984289: The California Supreme Court affirmed the decision of the Court of Appeal regarding the application of the anti-deficiency rule in Code of Civil Procedure section 580d. When a creditor holds two deeds of trust on the same property, section 580d does not preclude the creditor from recovering a deficiency judgment on the junior lien extinguished by a nonjudicial foreclosure sale on the senior lien. (May 6, 2019.)
FilmOn.com Inc. v. DoubleVerify Inc. (2019) _ Cal.5th _ , 2019 WL 1984290: The California Supreme Court reversed the decision of the Court of Appeal regarding the application of an anti-SLAPP motion to strike (Code of Civil Procedure, section 425.16) to commercial speech. The California Supreme Court ruled that the context of a defendant’s statement is relevant, though not dispositive, in analyzing whether the statement was made “in furtherance of” free speech “in connection with” a public issue. (Section 425.16(e)(4).) The Supreme Court ruled that defendant’s online tracking, verification and “brand safety” reports to internet advertisers — generated for profit and exchanged confidentially, without being part of any attempt to participate in a larger public discussion — did not qualify for anti-SLAPP protection under section 426.16(e)(4) because they were too tenuously tethered to the issues of public interest they implicated, and too remotely connected to the public conversation about those issues to merit protection under the catchall provision. (May 6, 2019.)
Heimlich v. Shivji (2019) _ Cal.5th _ , 2019 WL 2292828: The California Supreme Court reversed the Court of Appeal directing it to affirm the trial court’s order confirming the arbitration award but denying costs to respondent. A request for costs under section 998 is timely if filed with the arbitrator within 15 days of a final award. An arbitrator has authority to award costs to the requesting party, but if the arbitrator refuses to award costs, judicial review is limited. (May 30, 2019.)
Government
Plantier v. Ramona Mun. Water Dist. (2019) _ Cal.5th _ , 2019 WL 2292829: The California Supreme Court affirmed the decision of the Court of Appeal that had reversed the trial court’s decision. When an agency considers increasing a property-related fee, a fee payor seeking to challenge the agency’s method of calculating the fee is not required to exhaust its administrative remedies by first participating in a Proposition 218 public hearing at which the agency considers the proposed rate increase. (May 30, 2019.)
Real Property
Black Sky Capital, LLC v. Cobb (2019) _ Cal.5th _ , 2019 WL 1984289: See summary above under Civil Procedure.
Torts
Southern Cal. Gas Leak Cases (2019) _ Cal.5th _ , 2019 WL 2292831: The California Supreme Court affirmed the Court of Appeal’s decision overruling the trial court’s order overruling defendant’s demurrer to a complaint in a tort action. Plaintiffs were local businesses that allegedly suffered economic damages, but no personal injury or property damages, as a result of a months-long natural gas leak. The California Supreme Court ruled defendant had no tort duty to guard against negligently causing purely economic losses. Claims for purely economic losses suffered from mere proximity to an industrial accident are not compensable in negligence. (May 30, 2019.)
CALIFORNIA COURTS OF APPEAL
Arbitration
Levinson Arshonsky & Kurtz LLP v. Kim (2019) _ Cal.App.5th _ , 2019 WL 2281529: The Court of Appeal dismissed plaintiff’s appeal of the trial court’s order denying his petition to compel arbitration under the Mandatory Fee Arbitration Act (MFAA; Business and Professions Code section 6200, et seq.). The trial court found plaintiff waived his right to arbitration under the MFAA by failing to request arbitration within the required 30 days. The Court of Appeal lacked jurisdiction to consider the appeal because the denial of a petition to compel a MFAA arbitration is not an appealable order. (C.A. 2nd, May 29, 2019.)
Muller v. Roy Miller Freight Lines, LLC (2019) _ Cal.App.5th _ , 2019 WL 1929662: The Court of Appeal affirmed the trial court’s order granting in part and denying in part (as to one cause of action for lost wages) defendant’s motion to compel arbitration in a wage and hour action. The trial court correctly concluded that plaintiff was a transportation worker engaged in interstate commerce under 9 U.S.C. § 1 and thus exempt from Federal Arbitration Action coverage. Even though plaintiff did not physically transport goods across state lines, his employer was in the transportation industry, and the vast majority of the goods he transported originated outside California. Thus, California Labor Code section 229 required staying the prosecution of his cause of action for unpaid wages while the other five causes of action proceeded to arbitration. (C.A. 4th, May 1, 2019.)
Nunez v. Nevell Group, Inc. (2019) _ Cal.App.5th _ , 2019 WL 2266440: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to compel arbitration. The trial court properly denied the motion. Defendant explicitly waived its right to compel arbitration by advising the court in writing that it would not file such a motion. Defendant implicitly waived arbitration by its delay in filing the motion and by engaging in significant discovery and other litigation activities inconsistent with arbitration. Finally, plaintiff would have suffered prejudice if the motion was granted. (C.A. 4th, filed May 2, 2019, published May 28, 2019.)
Attorney Fees
Dane-Elec Corp. v. Bodokh (2019) _ Cal.App.5th _ , 2019 WL 2238428: The Court of Appeal affirmed in part, reversed in part, and remanded the trial court’s orders granting attorney fees in an action where plaintiff prevailed on its complaint to recover on a promissory note and also defeated defendant’s cross-complaint to recover allegedly unpaid wages. The trial court found that defendant had not brought the wage claim in bad faith and declined to award plaintiff attorney fees incurred solely in connection with the wage claim, but it awarded plaintiff attorney fees incurred in defending the wage claim that were inextricably intertwined with the contract claim. The Court of Appeal disagreed, ruling that, unless a trial court finds a wage claim was brought in bad faith, Labor Code section 218.5(a) prohibits, as a matter of law, an award of attorney fees to a nonemployee prevailing party for successfully defending a wage claim that is inextricably intertwined with a claim subject to a contractual prevailing party attorney fees provision. To the extent the wage claim and the contract claim are inextricably intertwined, section 218.5(a)’s prohibition on recovering attorney fees controls over the contractual attorney fees provision. (C.A. 4th, May 24, 2019.)
Attorneys
Levinson Arshonsky & Kurtz LLP v. Kim (2019) _ Cal.App.5th _ , 2019 WL 2281529: See summary above under Arbitration.
Civil Code
Front Line Motor Cars v. Webb (2019) _ Cal.App.5th _ , 2019 WL 2082416: The Court of Appeal affirmed the trial court’s order denying a writ of administrative mandate seeking to overturn a decision by the Department of Motor Vehicles (DMV), following an administrative hearing, adopting the administrative law judge’s proposed order for petitioner’s license to be conditionally revoked for two years due to petitioner’s violation of the Rees-Levering Motor Vehicles Sales and Finance Act (the Act; Civil Code, section 2981 et seq.) for failing to refund buyer deposits after petitioner repossessed cars due to the failure of buyers to obtain financing. The Court of Appeal ruled the trial court properly denied the writ because the transactions were seller-assisted loans subject to section 2982.5 of the Act, which expressly required petitioner to return the buyers’ down payments. (C.A. 4th, May 13, 2019.)
Timlick v. Nat. Enterprise Systems, Inc. (2019) _ Cal.App.5th _ , 2019 WL 2232123: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment in a putative class action for violation of the Consumer Collection Notice law minimum type-size requirements for consumer collection letters under Civil Code sections 1812.700 to 1812.702. The Court of Appeal agreed with the trial court that the Rosenthal Fair Debt Collection Practices Act (Rosenthal Act; § 1788 et seq.) cure provision set forth in section 1788.30(d) is available to debt collectors to correct curable violations of the Consumer Collection Notice law. However, the trial court erred in dismissing the entire putative class action without first affording plaintiff the opportunity to amend her complaint, redefine the putative class, or locate a suitable class representative, and without giving notice to the putative class. (C.A. 1st, filed May 7, 2019, published May 23, 2019.)
Civil Procedure
Colombo v. Kinkle, Rodiger & Spriggs (2019) _ Cal.App.5th _ , 2019 WL 2136082: The Court of Appeal affirmed the trial court’s motion for judgment on the pleadings against a vexatious litigant. Plaintiff’s (a vexatious litigant) request to sue his attorneys for legal malpractice was denied by the superior court, as was his motion for reconsideration, as was his request to the Court of Appeal for extraordinary relief. After plaintiff obtained from a different presiding judge leave to file the identical legal malpractice complaint, the trial court properly granted defendant’s motion for judgment on the pleadings. Plaintiff’s successive action was barred by res judicata. (C.A. 4th, May 16, 2019.)
Corrinet v. Bardy (2019) _ Cal.App.5th _ , 2019 WL 2041733: The Court of Appeal reversed the trial court’s order granting defendants’ motion to dismiss for failure to bring the matter to trial within three years. The Court of Appeal ruled that the trial court abused its discretion in granting the motion. Plaintiff served discovery early in the case, responded to defendants’ discovery by making available at least 8,000 pages of documents, was actively involved in related cases with cross-discovery issues, paid jury fees, disclosed his expert witnesses, and retained lawyers to assist him. Plaintiff also had documented medical problems that prevented him from participating as a witness at trial for a period of time, and his attorney became unexpectedly unavailable after suffering a stroke and undergoing heart surgery. Finally, plaintiff filed a declaration of his new counsel attesting that he was ready to try the case on January 22, 2018. (C.A. 1st, May 9, 2019.)
Global Financial Distributors v. Superior Court (2019) _ Cal.App.5th _ , 2019 WL 2083249: The Court of Appeal granted a writ of mandate and reversed the trial court’s order denying defendant’s motion to stay or dismiss an action on the ground of inconvenient forum because it was untimely under Code of Civil Procedure section 418.10(e). The Court of Appeal ruled that section 410.30 applies after a defendant has made a general appearance, and because defendants filed their motion to stay or dismiss on the ground of inconvenient forum after they had appeared in the action by filing demurrers, section 410.30 applied, and the motion was not untimely under section 418.10(e). (C.A. 2nd, filed April 16, 2019, published May 13, 2019.)
McFadden v. L.A. County Treasurer etc. (2019) _ Cal.App.5th _ , 2019 WL 1930510: The Court of Appeal affirmed the trial court’s order granting its own motion to strike under Code of Civil Procedure section 436 and motion for judgment on the pleadings under section 438 after plaintiff was found to be a vexatious litigant as a result of multiple lawsuits and appeals that she brought related to the demolition of her property. The Court of Appeal dismissed plaintiff’s appeals finding they had no merit and were filed to harass defendants. (C.A. 2nd, May 1, 2019.)
Shalabi v. City of Fontana (2019) _ Cal.App.5th _ , 2019 WL 2183795: The Court of Appeal reversed the trial court’s judgment for defendant, following a bench trial, on the statute of limitations in an action deprivation of civil rights (42 U.S.C. § 1983) by plaintiff for the death of his father. The trial court ruled the complaint was filed one day late. The Court of Appeal disagreed. Plaintiff was a minor when his father was killed. Plaintiff turned 18 on December 3, 2011, and he filed his complaint on December 3, 2013. Under Code of Civil Procedure section 12, a time deadline is calculated by excluding the first day. The Court of Appeal ruled that section 12 results in the anniversary method of calculating the final date for the statute of limitations and the plaintiff timely filed his complaint on December 3, 2013. (C.A. 4th, May 21, 2019.)
Contracts
Cohen v. Kabbalah Centre International (2019) _ Cal.App.5th _ , 2019 WL 2004009: The Court of Appeal affirmed other orders but reversed in part and affirmed in part the trial court’s order granting summary judgment to defendant in an action alleging multiple causes of action arising out of plaintiff’s donations of $452,000 to defendant’s building fund and $25,000 for a spirituality for kids program. The trial court properly disregarded plaintiff’s declaration contradicting her earlier deposition testimony and pleading allegations in granting summary judgment on the contract claim regarding the building donation. However, the trial court erred in granting summary judgment regarding the $25,000 donation because plaintiff’s opposition raised a genuine dispute regarding a material fact. (C.A. 2nd, May 7, 2019.)
Sands v. Walnut Gardens Condominium Assn. (2019) _ Cal.App.5th _ , 2019 WL 2082404: The Court of Appeal reversed the trial court’s order granting a nonsuit on a breach of contract action and affirmed the trial court’s order granting a nonsuit on a tort cause of action in an action where plaintiffs sued their homeowners association due to the breaking of a pipe on the roof that caused a water leak into their condominium. The trial court erred in granting the contract nonsuit because plaintiffs presented evidence that the covenants, conditions, and restrictions required defendant to keep the project in a first class position, but it was not performing any maintenance or preventative maintenance. The trial court properly granted the nonsuit on the tort claim because there was no evidence showing defendant was on notice of any condition that required repair. (C.A. 2nd, May 13, 2019.)
Switzer v. Wood (2019) _ Cal.App.5th _ , 2019 WL 1594324: See summary below under Penal Code.
Corporations
Longview Internat., Inc. v. Stirling (2019) _ Cal.App.5th _ , 2019 WL 2314881: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to expunge a judgment lien on real property. Although the plaintiff/judgment creditor corporation was suspended when the lien was created, the recording of the abstract of judgment was a procedural act that was retroactively validated once a suspended corporation’s powers were reinstated. (C.A. 6th, May 31, 2019.)
Education
B.H. v. Manhattan Beach School Dist. (2019) _ Cal.App.5th _ , 2019 WL 2171129: The Court of Appeal reversed the trial court’s order affirming the administrative judge’s finding that Manhattan Beach Unified School District (MBUSD) was not responsible for the special education costs of a disabled child whose adoptive parents received financial aid to help with the child’s placement in a nonpublic school in Sonoma County. The Court of Appeal ruled that the Los Angeles County Department of Children and Family Services (DCFS) was not a public agency, other than an educational agency under Education Code section 56155, that DCFS did not place the student in the Sonoma facility by providing Adoptive Assistance Program (AAP) assistance, and therefore Education Code section 56156.4(a) did not provide MBUSD with an exception to the rule that the school district of the parents’ residence is responsible for the costs of a disabled student’s education. The Court of Appeal also disapproved the decision of the Office of Administrative Hearings in Parent v. Elk Grove Unified Sch. Dist. (OAH case No. 2013020224, Feb. 19, 2013 Order Granting Motion to Dismiss Berkeley Unified School District), to the extent it was inconsistent with the Court of Appeal’s decision. (C.A. 2nd, May 20, 2019.)
Cal. Charter Schools Assn. v. City of Huntington Park (2019) _ Cal.App.5th _ , 2019 WL 2137545: The Court of Appeal reversed the trial court’s order denying a petition for writ of mandate seeking to invalidate an emergency ordinance passed by respondent that imposed a temporary moratorium on charter schools while it considered amending its zoning code. The Court of Appeal ruled that the ordinance is invalid as a matter of law because the findings of “numerous inquiries and requests for the establishment and operation of charter schools” did not amount to a “current and immediate threat” as required by Government Code section 65858(c) to enact an urgency ordinance. (C.A. 2nd, filed April 25, 2019, published May 16, 2019.)
Elections
Citizens Oversight v. Vu (2019) _ Cal.App.5th _ , 2019 WL 2182948: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to a complaint seeking to inspect and copy ballots cast by registered voters during the June 7, 2016, California Presidential Primary Election. The Court of Appeal ruled that the Legislature has exempted ballots from disclosure under the California Public Records Act (CPRA; Government Code, section 6250 et seq.) by specific, clear language in Elections Code sections 15370 and 17301. (C.A. 4th, May 21, 2019.)
Employment
Barber v. CA State Personnel Bd. (2019) _ Cal.App.5th _ , 2019 WL 2150925: The Court of Appeal affirmed the trial court’s order denying plaintiff’s petition for a writ of mandamus seeking to overturn respondent’s motion for recovery regarding his increased tax liability after petitioner won an earlier appeal and respondent awarded petitioner a lump sum back pay award. The Court of Appeal ruled that petitioner was not entitled to increased tax liability recovery under Government Code section 19584 because such relief is not statutorily authorized. (C.A. 4th, May 17, 2019.)
Bennett v. Rancho Cal. Water Dist. (2019) _ Cal.App.5th _ , 2019 WL 2281589: The Court of Appeal reversed a judgment for plaintiff awarding $794,000 in damages and $29,637.18 in costs, following a jury trial, in an action for whistleblower retaliation in violation of Labor Code section 1102.5(b). To prevail on a section 1102.5(b) claim, plaintiff had to prove he was defendant’s employee. The trial court erred in granting a motion in limine by plaintiff and concluding that defendant was collaterally estopped from challenging plaintiff’s employment status during the trial because an administrative law judge had found plaintiff was an employee in a retirement benefits proceeding. The Court of Appeal held a party is not collaterally estopped from litigating an issue when, in a prior proceeding, a dispositive finding had been made, but only by imposing a lesser burden of proof on the party invoking collateral estoppel than that which would have been applied in the subsequent proceeding. (C.A. 4th, May 29, 2019.)
County L.A. Dept. Pub. Social Svcs. v. Civil Svc. Com. L.A. County (2019) _ Cal.App.5th _ , 2019 WL 2121102: See summary below under Government. Dane-Elec Corp. v. Bodokh (2019) _ Cal.App.5th _ , 2019 WL 2238428: See summary above under Attorney Fees.
Le Mere v. Los Angeles Unified School Dist. (2019) _ Cal.App.5th _ , 2019 WL 1922901: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to the second amended complaint alleging that defendants engaged in a pattern of harassment, discrimination and retaliation against her because she engaged in protected activities. The trial court properly sustained the demurrer because plaintiff did not amend one cause of action following the sustaining of an earlier demurrer, plaintiff did not seek leave to add a new cause of action not previously pled, and, as to another claim, plaintiff failed to follow the government tort claims act requirements. (C.A. 2nd, filed April 30, 2019, published May 14, 2019.)
Paxton v. Bd. of Admin., CalPERS (2019) _ Cal.App.5th _ , 2019 WL 2171135: The Court of Appeal affirmed the trial court’s order denying a petition for writ of administrative mandamus challenging a decision by the Board of Administration of CalPERS determining that compensation petitioner received as part of a bonus program would not be considered when calculating his future pension benefit. The Court of Appeal ruled that the trial court’s conclusion, that the bonuses petitioner earned were for performing additional services outside his regular duties and thus not appropriate for consideration when calculating his pension benefit, were supported by substantial evidence. (C.A. 3rd, filed April 23, 2019, published May 20, 2019.)
Evidence
Stokes v. Baker (2019) _ Cal.App.5th _ , 2019 WL 2296490: See summary below under Medical Malpractice.
Family Law
In re H.D. (2019) _ Cal.App.5th _ , 2019 WL 2020607: The Court of Appeal reversed the trial court’s order terminating the mother’s parental rights based upon abandonment under Family Code section 7822(a)(3). Because she suffered from addiction, the mother agreed to let her ex-husband (father) assume full custody of their two daughters—who had previously lived primarily with the mother—until she could get clean and sober. Mother underwent treatment and 14 months later sought to regain partial custody in family court. The Court of Appeal found there was no intent to abandon under section 7822 (a)(3). The mother’s failure to communicate with and financially support her daughters was not due to any intent on her part to abandon her daughters. Indeed, mother did the opposite of abandon her children; she diligently treated her addictions before trying to regain custody. (C.A. 4th, May 8, 2019.)
In re Marriage of George & Deamon (2019) _ Cal.App.5th _ , 2019 WL 2148074: The Court of Appeal affirmed the trial court’s order requiring the wife to pay $10,000 in sanctions pursuant to Family Code section 271 to husband after husband was required to file a motion for entry of judgment pursuant to the terms of the parties’ settlement. Wife objected to husband not being present at the sanctions hearing, but husband was properly represented at the hearing by his counsel. If wife wanted husband to be present, she needed to serve him with a notice to appear pursuant to Code of Civil Procedure section 1987(b), which she did not do. Finally, nothing in Family Law section 217 requires a party to offer any evidence at a motion hearing when the motion is being decided solely based on the party’s written submissions because no party has taken proper steps to present live testimony. In that event, Code of Civil Procedure section 2009 controls, which—despite the hearsay rule—allows a motion hearing to be decided based on declarations. (C.A. 4th, May 17, 2019.)
In re Marriage of Kent (2019) _ Cal.App.5th _ , 2019 WL 2148074: The Court of Appeal reversed the trial court’s order granting in part and denying in part wife’s request to modify a child custody and child support order issued by a North Carolina court. The trial court should have first determined whether it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.). The trial court erred by failing to contact the North Carolina Court before considering a modification to the North Carolina order. Having been supplied section 3429 documents disclosing that a child custody proceeding had been commenced in the North Carolina court, the California family court was required to stay its modification proceeding and communicate with the court of the other state. (Section 3426(b).) The trial court lacked modification jurisdiction under the UCCJEA at the time it ruled on mother’s request for order. (C.A. 4th, May 17, 2019.)
Lugo v. Corona (2019) _ Cal.App.5th _ , 2019 WL 2265133: The Court of Appeal reversed the trial court’s order denying wife’s request for a domestic violence restraining order (DVRO) against her husband. The trial court denied the request because a criminal protective order was already in place. The Court of Appeal reversed, ruling that a criminal protective order does not bar the entry of a DVRO. (C.A. 2nd, May 28, 2019.)
Marriage of Miotke (2019) _ Cal.App.5th _ , 2019 WL 2266835: The Court of Appeal affirmed the trial court’s order entering a judgment enforcing a premarital agreement that waived spousal support to either party, after a private judge stipulated to by the parties found the agreement was enforceable. The Court of Appeal ruled there was substantial evidence in the record supporting the private judge’s factual determinations and her conclusion that both parties waived any right to spousal support. (C.A. 6th, May 28, 2019.)
Government
Boatworks, LLC v. City of Alameda (2019) _ Cal.App.5th _ , 2019 WL 2135170: The Court of Appeal affirmed in part and reversed in part the trial court’s order granting a writ petition challenging respondent’s ordinance establishing fees it would impose as a condition for approving future development. The Court of Appeal ruled the trial court erred only in two respects: in ruling respondent could not treat certain areas as parks, and in the form of the remedy it imposed. The Court of Appeal ruled that the proper remedy was to declare the ordinance void or invalid to the extent it set the parks and recreation fees. On remand, the trial court was ordered to issue a judgment declaring the ordinance’s parks and recreation fee invalid and unenforceable. (C.A. 1st, May 15, 2019.)
Cal. Charter Schools Assn. v. City of Huntington Park (2019) _ Cal.App.5th _ , 2019 WL 2137545: See summary above under Education. Citizens Oversight v. Vu (2019) _ Cal.App.5th _ , 2019 WL 2182948: See summary above under Elections.
County L.A. Dept. Pub. Social Svcs. v. Civil Svc. Com. L.A. County (2019) _ Cal.App.5th _ , 2019 WL 2121102: The Court of Appeal vacated the trial court’s judgment reversing the decision of the Los Angeles County Civil Service Commission (Commission) finding that real party in interest Linda Hoa (a County of Los Angeles employee) was entitled to a medical reevaluation under Rule 9.07(B). The Court of Appeal agreed with the trial court’s reversal of the Commission’s decision because the Commission abused its discretion in finding that an appointing authority must grant any employee’s request for a medical reevaluation under Rule 9.07(B). However, the Court of Appeal ruled that the Commission lacked jurisdiction to consider Hoa’s appeal and ordered the trial court to enter a new judgment saying so. (C.A. 2nd, May 15, 2019.)
DiRaffael v. Cal. Army Nat. Guard (2019) _ Cal.App.5th _ , 2019 WL 2223576: The Court of Appeal affirmed the trial court’s order denying a petition for writ of mandate to direct the California Army National Guard (CAARNG) to vacate an order separating petitioner, a commissioned officer, from CAARNG. The trial court properly ruled that state law incorporated the applicable federal regulations via provisions of the Military and Veterans Code, and therefore CAARNG could properly invoke them to separate petitioner. (C.A. 2nd, May 23, 2019.)
Gomes v. Mendocino City Community Services Dist. (2019) _ Cal.App.5th _ , 2019 WL 2098371: See summary below under Water.
Insurance
Jozefowicz v. Allstate Ins. Co. (2019) _ Cal.App.5th _ , 2019 WL 2265126: The Court of Appeal affirmed the trial court’s order granting defendant summary judgment in an action where plaintiff homeowner sued defendant under California Commercial Code section 3309 for a check that defendant issued payable to a contractor renovating plaintiff’s fire damaged home. The trial court properly ruled section 3309 did not apply because plaintiff had given permission to defendant to issue checks to the contractor. (C.A. 4th, May 28, 2019.)
Mazik v. GEICO General Ins. Co. (2019) _ Cal.App.5th _ , 2019 WL 2150799: The Court of Appeal affirmed the trial court’s order reducing a jury’s award of $4 million in punitive damages to $1 million, after the jury found defendant had acted in bad faith in denying plaintiff’s demand for the $50,000 policy limit under his underinsured motorist coverage with defendant and awarded plaintiff $313,508 in compensatory damages. The Court of Appeal ruled there was sufficient evidence in the record to show that defendant’s regional liability administrator was a managing agent who ratified conduct warranting punitive damages. In concluding that plaintiff’s claim was worth far less than the policy limits, defendant disregarded information provided by plaintiff showing he had a permanent, painful injury, and instead selectively relied on portions of medical records that supported defendant’s position that plaintiff had fully recovered. As reduced by the trial court, the $1 million in punitive damages (approximately three times the amount of compensatory damages) was within the constitutionally permitted range in view of the degree of reprehensibility of defendant’s conduct. (C.A. 2nd, May 17, 2019.)
Mercury Insurance Co. v. Lara (2019) _ Cal.App.5th _ , 2019 WL 2052118: The Court of Appeal reversed the trial court’s order granting a writ of mandate reversing a decision by the Insurance Commissioner of the State of California (Commissioner), following an administrative hearing, finding that petitioner had charged rates not approved by the California Department of Insurance, the rates were unfairly discriminatory in violation of Insurance Code sections 1861.01(c) and 1861.05(b), and imposing civil penalties in the sum of $27,593,550 for almost 184,000 unlawful acts. The Court of Appeal ruled that writ was issued in error. Because there was substantial evidence supporting the Commissioner’s decision, remand for a new hearing would be an idle act, and the case was remanded with directions for the court to deny the writ. (C.A. 4th, May 7, 2019.)
Medical Malpractice
Stokes v. Baker (2019) _ Cal.App.5th _ , 2019 WL 2296490: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment on the basis that plaintiff’s expert witness (not an emergency room physician) was disqualified from testifying under Health and Safety Code section 1799.110(c). The Court of Appeal held that section 1799.110 applies to standard of care testimony only. The trial court erred in striking plaintiff’s expert’s declaration on the subject of causation. Because the declaration was sufficient to raise a triable issue of fact regarding causation, the summary judgment was reversed. (C.A. 2nd, May 30, 2019.)
Partnerships
Han v. Hallberg (2019) _ Cal.App.5th _ , 2019 WL 2183048: The Court of Appeal reversed and remanded the trial court’s ruling, following a bench trial, that Dr. Richard Hallberg (Dr. Hallberg) at the time of his death was a partner in a partnership created to acquire and maintain a dental office building, even though 15 years earlier he had assigned his partnership interest to his living trust and had substituted the trustee (then Dr. Hallberg) as a general partner in place of Dr. Hallberg individually. The Court of Appeal disagreed, ruling that Dr. Hallberg was not a partner when he died. His trust, or the trustee of his trust, was the partner. While a trust cannot act in its own name and must always act through its trustee, a trust is a “person” that may associate in a partnership under the Uniform Partnership Act of 1994 (UPA; Corp. Code, § 16100 et seq.), based on the plain language of the UPA’s definition of “person.” The Court of Appeal declined to follow, as the trial court had, the case of Presta v. Tepper (2009) 179 Cal.App.4th 909, 918 which suggested a different outcome. (C.A. 2nd, May 21, 2019.)
Penal Code
Switzer v. Wood (2019) _ Cal.App.5th _ , 2019 WL 1594324: The Court of Appeal reversed the trial court’s orders denying cross-complainant treble damages and attorney fees under Penal Code section 496.[1] Cross-complainant alleged direct claims against cross-defendants for breach of contract, fraud, breach of fiduciary duty/constructive fraud, conversion, negligence, and for civil remedies provided by section 496(c) related to the sales of spinal implants. It also alleged derivative claims on behalf of a limited liability company. The jury found for cross-complainant on the direct and derivative claims. For the section 496(c) violations, the jury awarded direct damages of $1,289,165 and derivative damages of $401,232. The trial court erred in concluding that section 496(c) did not apply in the context of a joint venture or preexisting business relationship where ordinary fraud and breach of contract remedies would be available. The Court of Appeal ruled that, under the plain meaning of the statute, because violations of section 496(a) had been determined to have occurred, cross-complainant was entitled to an award of treble damages and attorney fees. The case was remanded, and the trial court was directed to award treble damages and determine the amount of attorney fees to be awarded. (C.A. 5th, filed April 19, 2019, published May 10, 2019.)
Punitive Damages
Mazik v. GEICO General Ins. Co. (2019) _ Cal.App.5th _ , 2019 WL 2150799: See summary above under Insurance.
Real Property
Boatworks, LLC v. City of Alameda (2019) _ Cal.App.5th _ , 2019 WL 2135170: See summary above under Government.
Gomes v. Mendocino City Community Services Dist. (2019) _ Cal.App.5th _ , 2019 WL 2098371: See summary below under Water.
Kahan v. City of Richmond (2019) _ Cal.App.5th _ , 2019 WL 2225041: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, with leave to amend, that plaintiff declined to amend a class action lawsuit filed by plaintiff alleging that defendant’s practice of recording liens for unpaid garbage collection fees violated and was preempted by state law. The Court of Appeal ruled that defendant was authorized to record the garbage lien as a special assessment, that defendant’s ordinance was consistent with statutory lien priority law, and the bona fide encumbrancer exception did not apply to the facts alleged in the complaint. (C.A. 1st, May 23, 2019.)
Longview Internat., Inc. v. Stirling (2019) _ Cal.App.5th _ , 2019 WL 2314881: See summary above under Corporations.
Torts
D.Z. v. Los Angeles Unified School Dist. (2019) _ Cal.App.5th _ , 2019 WL 2098674: The Court of Appeal reversed a jury verdict for defendant in a case where plaintiff alleged she was sexually abused by her teacher. The Court of Appeal held the trial court abused its discretion in excluding all evidence of conduct by the teacher that did not involve physical touching, and this error was prejudicial to appellant. In addition, the Court of Appeal ruled that the trial court erred in giving CACI Nos. 3701 and 3703 with modifications proposed by defendant because they were unnecessary and potentially confusing given the issues in dispute in the case. (C.A. 2nd, May 14, 2019.)
Sands v. Walnut Gardens Condominium Assn. (2019) _ Cal.App.5th _ , 2019 WL 2082404: See summary above under Contracts. Shalabi v. City of Fontana (2019) _ Cal.App.5th _ , 2019 WL 2183795: See summary above under Civil Procedure.
Switzer v. Wood (2019) _ Cal.App.5th _ , 2019 WL 1594324: See summary above under Penal Code.
Taulbee v. EJ Distribution Corp. (2019) _ Cal.App.5th _ , 2019 WL 2184705: The Court of Appeal affirmed a defense verdict on the basis of no negligence, following a jury trial, in a personal injury action. The trial court properly instructed the jury that it could find defendant truck driver negligent per se for parking his truck in a gore point (a triangular shaped zone demarcated by the freeway and the exit ramp; Vehicle Code, section 21718) and that plaintiff could be found negligent per se for driving into the gore point (section 21651). The trial court properly declined to instruct the jury that defendant truck driver could also be found negligent per se for driving into the gore point to park his vehicle (section 21651), because his allegedly negligent driving into the gore point was not a proximate cause of the traffic accident. Moreover, any instructional error in failing to give the instruction was harmless given the jury’s finding the truck driver was not negligent for parking in the gore point. (C.A. 4th, filed April 23, 2019, published May 20, 2019.)
Uniform Commercial Code
Jozefowicz v. Allstate Ins. Co. (2019) _ Cal.App.5th _ , 2019 WL 2265126: See summary above under Insurance.
Water
Gomes v. Mendocino City Community Services Dist. (2019) _ Cal.App.5th _ , 2019 WL 2098371: The Court of Appeal reversed the trial court’s denial of a writ petition seeking to invalidate respondent’s ordinance limiting the quantity of groundwater petitioner could extract from his property. While Water Code section 10700 et seq. authorized the imposition of extraction limitations, the district did not adopt its program as required by the statute and the ordinance was invalidated without prejudice to re-adoption of a similar program in accordance with the statutorily mandated procedures. (C.A. 1st, May 14, 2019.) Inzana v. Turlock Irrigation Dist. Bd. of Directors (2019) _ Cal.App.5th _ , 2019 WL 1785510: The Court of Appeal affirmed the trial court’s order properly denying a petition for writ of administrative mandamus that challenged respondent’s tree removal order and its cessation of water delivery to petitioner. Petitioner planted over 160 pistachio trees within an easement his predecessor in interest had granted to respondent to construct a pipeline, which gave respondent the right of access to maintain the pipeline. Respondent ordered petitioner to remove his trees, and he refused to do so. Respondent then refused to deliver water to petitioner’s land, which was a remedy provided under its irrigation rules. (C.A. 5th, filed April 24, 2019, published May 16, 2019.)
[1] Although section 496 defines a criminal offense, it also provides an enhanced civil remedy in the event there has been a violation of the statute – where a person has knowingly received, withheld or sold property that has been stolen or that has been obtained in any manner constituting theft. (Section 496(a).)
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