By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee
Civil Trial Lawyer & ABOTA Member | Licensed in California since 1980
Phone: (619) 990-4312 | Email: monty@montymcintyre.com | www.montymcintyre.com
Business | Class Action | Construction | Employment | Insurance | Medical Malpractice
Probate | Professional Liability | Real Property | Torts | Trusts and Estates
San Diego | Irvine | Los Angeles | San Francisco
To schedule, call Genevieve Kenizwald at (619) 233-1323, or email gen@adrservices.org.
CALIFORNIA COURTS OF APPEAL
Arbitration
Nguyen v. Applied Medical Resources Corporation (2016) _ Cal.App.5th _ , 2016 WL 6070989: The Court of Appeal treated an appeal of the trial court’s order granting defendant’s motion to compel arbitration as a writ petition. It denied in part and granted in part the writ petition. The portion reversed was the trial court’s order striking all class and representative claims except for the representative Private Attorney General Act claim. Based on the recent case of Sandquist v. Lebo Automotive Inc. (2016) 1 Cal.5th 233 (Sandquist), the Court of Appeal concluded that the trial court erred in dismissing the class claims because whether the arbitration provision contemplated class arbitration was a question for the arbitrator to decide. (C.A. 4th, filed October 4, 2016, published October 14, 2016.)
Attorney Fees
Goglin v. BMW of North America (2016) _ Cal.App.5th _ , 2016 WL 6135482: The Court of Appeal affirmed the trial court’s award of attorney fees and costs of $185,000 after plaintiff successfully settled her claims under the Song-Beverly Consumer Warranty Act (Civil Code, section 1790 et seq.) and other consumer protection statutes. The Court of Appeal held that plaintiff’s rejection of defendants’ earlier settlement offers because of unfavorable extraneous settlement terms was not unreasonable. Plaintiff was unwilling to agree to a general release and confidentiality due to statutory and case law supporting her position. The Court of Appeal also ruled that the trial court did not abuse its discretion in basing the fee award on an hourly rate of $575. (C.A. 4th, October 21, 2016.)
Robinson v. U-Haul Company of California (2016) _ Cal.App.5th _ , 2010 WL 4113578: The Court of Appeal affirmed the trial court’s order granting an injunction prohibiting defendant from initiating or threatening to initiate judicial proceedings to enforce a noncompetition covenant in California and an $800,000 attorney fee award to plaintiff as a private attorney general on his unfair competition law cause of action (Business and Professions Code section 17200, et seq.). The Court of Appeal concluded the injunction was properly entered and the trial court did not abuse its discretion in allowing plaintiff to file a late motion for attorney fees. (C.A. 1st, October 18, 2016.)
Civil Procedure
Huang v. The Bicycle Casino (2016) _ Cal.App.5th _ , 2016 WL 6092412 : The Court of Appeal reversed the trial court’s order granting summary judgment for defendant in a personal injury case arising from a casino patron being injured while trying to board a shuttle bus to the casino. The Court of Appeal held that the trial court erred in holding defendant was not a common carrier as a matter of law, as there was a triable issue of material fact on this point. The Court of Appeal also concluded that, even if defendant were a private carrier owing only a duty of ordinary care, there was no basis for establishing a “no duty” ruling in this case. (C.A. 2nd, October 19, 2016.)
Nava v. Saddleback Memorial Medical Center (2016) _ Cal.App.5th _ , 2016 WL 5338541: The Court of Appeal affirmed the trial court’s order granting summary judgment to defendants on the basis that plaintiff complaint that was filed more than one year after the alleged negligence was untimely under Code of Civil Procedure section 340.5. Based upon the recent California Supreme Court decision in Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, section 340.5 applied because the injury during the transfer of plaintiff in the hospital on a gurney was integrally related to his medical treatment or diagnosis and therefore occurred in the rendering of professional services. (C.A. 4th, filed September 23, 2016, published October 18. 2016.)
Soto v. Motel 6 Operating, L.P. (2016) _ Cal.App.5th _ , 2016 WL 6123927: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend in an action by a former employee, in her individual capacity and also on behalf of all aggrieved workers under the Private Attorney General Act of 2004 (PAGA, Labor Code section 2698 et seq.), against a former employer alleging that defendant violated Labor Code section 226 (a)1 by failing to include the monetary amount of accrued vacation pay in its employees’ wage statements. Section 226(a) does not require employers to include the monetary value of accrued paid vacation time in employee wage statements unless and until a payment is due at the termination of the employment relationship. (C.A. 4th, October 20, 2016.)
Verio Healthcare v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 5929943: The Court of Appeal denied a writ petition challenging the trial court’s order denying a motion to stay a civil action for nine months, pursuant to Code of Civil Procedure sections 595 and 1954.1, because defendant’s counsel was a member of the California Legislature. The trial court acted within its discretion by impliedly concluding the requested stay would abridge a right to invoke a provisional remedy, an express exception to the legislative directive making mandatory the granting of a continuance. In addition, the Court of Appeal ruled that sections 595 and 1054.1, despite the 1968 amendment of those sections, remain directory (not mandatory) in nature, and those statutes “are to be applied subject to the discretion of the court as to whether or not its process and order of business should be delayed.” (Thurmond v. Superior Court (1967) 66 Cal.2d 836, 839-840.)(C.A. 4th, October 12, 2016.)
Consumer Protection
Goglin v. BMW of North America (2016) _ Cal.App.5th _ , 2016 WL 6135482: See summary above under Attorney Fees.
Education
Anderson Union High School District v. Shasta Secondary Home School (2016) _ Cal.App.5th _ , 2016 WL 6069487: The Court of Appeal reversed the trial court’s judgment for defendant in an action seeking an injunction and declaratory relief. The Court of Appeal concluded that the comprehensive statutory scheme governing charter schools does not permit a charter school to locate a resource center outside the geographic boundaries of the authorizing school district but within the same county. (C.A. 3rd, October 17, 2016.)
Employment
Soto v. Motel 6 Operating, L.P. (2016) _ Cal.App.5th _ , 2016 WL 6123927: See summary above under Civil Procedure.
Wal Mart Stores v. United Food & Commercial Workers (2016) _ Cal.App.5th _ , 2016 WL 5957279: The Court of Appeal, on rehearing, affirmed the trial court’s permanent injunction barring defendant from conducting demonstrations inside stores owned by plaintiff. The Court of Appeal concluded that the National Labor Relations Act (29 U.S.C. section 151, et seq.) did not preempt plaintiff’s trespass action. (C.A. 2nd, October 14, 2016.)
Government
Building Industry Association v. City of San Ramon (2016) _ Cal.App.5th _ , 2016 WL 5940916: The Court of Appeal affirmed the trial court’s summary judgment for defendant in an action by plaintiff challenging defendant’s approval of a tax within a communities facilities district to raise revenue to pay for services furnished to a new development. The Court of Appeal concluded that the tax will provide “additional services” to meet increased demand for existing services resulting from the development and therefore meets the requirements of the California Mello-Roos Act; the tax is a special (and not a general) tax because it is imposed for specific purposes and not for general governmental purposes, and therefore meets the requirements of the California Constitution; and the property owners’ constitutional and statutory rights are not burdened by an ordinance explaining that the city services funded by a special tax will not be provided by the city if the tax is repealed. (C.A. 1st, October 13, 2016.)
California Public Records Research v. County of Yolo (2016) _ Cal.App.5th _ , 2016 WL 5957282: The Court of Appeal affirmed the trial court’s order granting summary judgment to respondent regarding a writ petition challenging fees charged to copy documents and also denying petitioner’s motion for fees under Code of Civil Procedure section 1021.5. (C.A. 3rd, October 14, 2016.)
State of California v. Superior Court (2016) _ Cal.App.5th _ : The Court of Appeal granted a writ petition and ordered the trial court to vacate its earlier order directing petitioner to produce unredacted records containing information derived from CHP 180 forms in the possession of the California Highway Patrol because the CHP 180 forms contained personal information exempt from disclosure under the California Public Records Act (CPRA) (Government Code, section 6250 et seq.), as set forth in County of Los Angeles v. Superior Court (2015) 242 Cal.App.4th 475. The trial court was ordered to enter a new order directing the State to produce all electronically stored data derived from CHP 180 forms in the possession of the CHP, redacting all personal information exempt from disclosure under the CPRA. (C.A. 2nd, October 13, 2016.)
Union of Medical Marijuana Patients v. City of San Diego (2016) _ Cal.App.5th _ , 2016 WL 5956980: The Court of Appeal affirmed the trial court’s order denying a writ petition challenging respondent’s enactment of an ordinance adopting regulations for the establishment and location of medical marijuana consumer cooperatives. The ordinance did not constitute a project within the meaning of California Environmental Quality Act and respondent was not required to conduct an environmental analysis before enacting the ordinance. (C.A. 4th, October 14, 2016.)
Labor
Wal Mart Stores v. United Food & Commercial Workers (2016) _ Cal.App.5th _ , 2016 WL 5957279: See summary above under Employment.
Legal Malpractice
Gotek Energy, Inc., v. SoCal IP Law Group (2016) _ Cal.App.5th _ , 2016 WL 5929908: The Court of Appeal affirmed the trial court’s order granting summary judgment to defendant law firm and awarding defendant attorney fees of $140,000. The trial court properly granted summary judgment because the law suit was not filed within the one year statute of limitations. Defendant sent an email saying it must withdraw as counsel. The attorney-client relationship ended on November 8, 2012, when plaintiff wrote a letter to defendant firm asking it to deliver all client files to a new attorney. The malpractice law suit was filed more than one year after that date. The trial court also awarded defendant attorney fees because its engagement agreement has an attorney fee clause. (C.A. 2nd, October 12, 2016.)
Medical Malpractice
Nava v. Saddleback Memorial Medical Center (2016) _ Cal.App.5th _ , 2016 WL 5338541: See summary above under Civil Procedure.
Real Property
Jamison v. Department of Transportation (2016) _ Cal.App.5th _ , 2016 WL 6092470: The Court of Appeal reversed the trial court’s order granting an injunction enjoining defendant from removing an obstruction plaintiff had placed against a ditch culvert within a state highway right-of-way without an encroachment permit. The Court of Appeal concluded that the trial court erred in granting the injunction because no evidence supported an exception to the statutory bar prohibiting injunctions that prevent the execution of a public statute by public officers for public purposes. (C.A. 3rd, October 19, 2016.)
Union of Medical Marijuana Patients v. City of San Diego (2016) _ Cal.App.5th _ , 2016 WL 5956980: See summary above under Government.
Torts
A.M. v. Ventura Unified School District (2016) _ Cal.App.5th _ , 2016 WL 5936851: The Court of Appeal reversed the trial court’s order granting summary judgment for defendants because plaintiff had failed to file a government tort claim against defendants in an action alleging childhood sexual abuse. The Court of Appeal reversed because Code of Civil Procedure section 340.1 provided the limitations period for plaintiff’s claims of childhood sexual abuse and plaintiff was exempt from filing a government tort claim under Government Code section 905(m). (C.A. 2nd, October 12, 2016.)
Huang v. The Bicycle Casino (2016) _ Cal.App.5th _ , 2016 WL 6092412 : See summary above under Civil Procedure.
Moore v. Mercer (2016) _ Cal.App.5th _ , 2016 WL 6135335: The Court of Appeal affirmed most of the trial court’s rulings regarding the reasonable value of medical services provided to an uninsured plaintiff, under Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 (Howell), in a case where plaintiff sued for personal injuries arising from a car accident. The Court of Appeal, however, reversed the trial court’s order imposing sanctions of $2,500 on defendant for filing an unsuccessful motion to compel a treating doctor to produce billing records, payment records, and records evidencing any agreements for the medical care of plaintiff related to her surgery. The Court of Appeal concluded that (1) Howell does not cap a plaintiff’s damages to the amount a medical finance company pays health care providers for their accounts receivable and medical liens, and the reasoning of Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288 remains sound; (2) Howell does not limit the trial court’s discretion pursuant to Evidence Code section 352 to exclude evidence of the amount a medical finance company pays if the court decides, as it did here, that the evidence was minimally probative, if at all, and would necessitate an undue consumption of time to try collateral issues; (3) the terms of the agreement between a medical finance company and the plaintiff’s providers may be relevant and discoverable, and therefore the sanctions imposed on the defendant were reversed; and (4) the trial court properly entered a directed verdict on causation in favor of plaintiff. (C.A. 3rd, October 21, 2016.)
Wang v. Nibbelink (2016) _ Cal.App.5th _ , 2016 WL 5940076: The Court of Appeal affirmed the trial court’s summary judgment for defendants on the basis of recreational use immunity in Civil Code section 846. In a case of first impression, the Court of Appeal ruled that section 846 shields landowners from liability where recreational users of the land cause injury to persons outside the premises who are uninvolved in the recreational use of the land, even where the plaintiffs also allege that the landowners’ neglect of their own property-based duties contributed to the injury. Plaintiff was injured when a horse ran away from a wagon train on defendants’ land and trampled plaintiff as she and her husband got out of their car to go into a restaurant on an adjacent property. (C.A. 3rd, October 13, 2016.)
Copyright © 2016 Monty A. McIntyre, Esq.
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