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
Matters Handled: Business | Class Action | Construction | Employment
Insurance | Medical Malpractice | Probate | Professional Liability
Real Property | Torts | Trusts and Estates
Locations: 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
Attorneys
Walker v. Apple, Inc. (2016) _ Cal.App.5th _ , 2016 WL 5404080: In a putative class action by plaintiffs against their former employer, the Court of Appeal affirmed the trial court’s order disqualifying plaintiffs’ counsel Hogue & Belong (the Firm). Automatic disqualification was required on the basis the Firm had a conflict of interest arising from its concurrent representation of the putative class in this case and the certified class in another wage-and-hour class action pending against Apple (Felczer v. Apple, Inc. (Super. Ct. San Diego County No. 37-2011-00102573-CU-OE-CTL)(Felczer)). The trial court properly concluded that to advance the interests of its clients in this case, the Firm would need to cross-examine a client in the Felczer class (the Walkers’ store manager) in a manner adverse to that client. (C.A. 4th, filed September 28, 2016, published October 28, 2016.)
Attorney Fees
Alki Partners v. DB Fund Services (2016) _ Cal.App.5th _ , 2016 WL 6156327: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant but reversed the trial court’s order awarding defendant attorney fees in an action by plaintiffs alleging breach of contract in the administration of a hedge fund. The summary judgment was affirmed because the undisputed material facts established the administrator did not breach the applicable contract. The attorney fee award, however, was reversed because the contractual language relied upon was a third party indemnity provision that did not create a right to prevailing party attorney fees in litigation between the parties to the contract. (C.A. 4th, October 24, 2016.)
Humboldt County Adult Protective Services v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 6208628: The Court of Appeal reversed the trial court’s order denying appellant’s motion for attorney fees. The Court of Appeal concluded that, on the record before it, respondent Humboldt County Adult Protective Services (Humboldt) had no reasonable cause under the Health Care Decisions Law (Probate Code section 4600 et seq.) to file an ex parte application seeking to revoke a patient’s written advance care directive by removing his wife (appellant) as his designated agent for health care decisions and compel medical treatment. Because respondent Humboldt had no reasonable cause to proceed, the Court of Appeal reversed and remanded for a determination and award of reasonable fees to appellant. (C.A. 1st, October 24, 2016.)
Millview County Water District v. State Water Resources Control Board (2016) _ Cal.App.5th _ , 2016 WL 5407695: In a water rights case where plaintiffs had won a mandate proceeding challenging a proposed cease and desist order (CDO), the Court of Appeal reversed the portion of the trial court’s order awarding attorney fees for an appeal, and affirmed the rest of the trial court’s order denying attorney fees for the rest of the litigation. The entry of the CDO would have rendered worthless the water district’s purchase of water rights for which it paid a minimum of $500,000, and the plaintiffs selling the water rights would have made only $500,000 instead of $2.1 million. Plaintiffs failed to provide the trial court with substantial evidence to support a finding the costs of the litigation transcended their personal financial stakes, a finding necessary to support an award of attorney fees under Code of Civil Procedure section 1021.5. (C.A. 1st, filed September 28, 2016, published October 26, 2016.)
Civil Procedure (Anti-SLAPP, Statute of Limitations)
Anderson v. Fitness International (2016) _ Cal.App.5th _ , 2016 WL 6302109: In a personal injury action arising from a slip and fall in a fitness club shower, the Court of Appeal affirmed the trial court’s order granting summary judgment to defendant. Defendant’s assertion of a release of liability as a complete defense to the negligence cause of action was sufficient to shift the burden to plaintiff to produce evidence showing that a triable issue of one or more material facts existed to preclude summary judgment. Plaintiff failed to do so. (C.A. 2nd, October 27, 2016.)
Contreras v. Dowling (2016) _ Cal.App.5th _ , 2016 WL 6248437: The Court of Appeal reversed the trial court’s order denying an anti-SLAPP motion to strike and an award of sanctions against defendant. Plaintiff’s cause of action against defendant arose out of protected activity because the only actions defendant was alleged to have taken were communicative acts by an attorney representing clients in pending or threatened litigation. Such acts are unquestionably protected by Code of Civil Procedure section 425.16, and bare allegations of aiding and abetting or conspiracy did not suffice to remove these acts from the protection of the statute. Moreover, plaintiff could not demonstrate a probability of prevailing on the merits of her cause of action because defendant’s communicative acts fell within the scope of the litigation privilege in Civil Code section 47(b). (C.A. 1st, October 26, 2016.)
Drexler v. Petersen (2016) _ Cal.App.5th _ , 2016 WL 6407973: See summary below under Medical Malpractice. Goonewardene v. ADP, LLC (2016) _ Cal.App.5th _ , 2016 WL 6554981: In an employment action alleging wrongful termination, violations of the Labor Code, breach of contract, negligent misrepresentation and negligence, the Court of Appeal affirmed in part and reversed in part the trial court’s order sustaining a demurrer without leave to amend to the fifth amended complaint. The Court of Appeal ruled that the proposed complaint stated claims against defendants for breach of contract, negligent misrepresentation and negligence, and reversed and remanded with instructions to permit plaintiff to file a complaint against defendants asserting those claims. (C.A. 2nd., November 4, 2016.)
Industrial Waste & Debris Box Service v. Murphy (2016) _ Cal.App.5th _ , 2016 WL 6311624: The Court of Appeal reversed the trial court’s order denying an anti-SLAPP motion to strike a complaint alleging defamation in a report prepared by defendants for a competitor of plaintiff that questioned the accuracy of statements in plaintiff’s public reports about the percentages of the waste materials it collected that were recycled and thereby diverted from landfills. The trial court properly concluded that the action arose from protected activity, but it erred in finding that plaintiff had demonstrated a probability of success on the merits because plaintiff failed to provide evidence sufficient to support a finding that defendants’ estimates were substantially false. (C.A. 1st, October 28, 2016.)
Strasner v. Touchstone Wireless Repair and Logistics (2016) _ Cal.App.5th _ , 2016 WL 6555013: In an action where plaintiff alleged damages arising from the non-consented to posting of a private photograph to plaintiff’s Facebook account by an employee of one of the out-of-state defendants, the Court of Appeal affirmed the trial court’s order granting a motion by defendants to quash the summons and amended complaint due to lack of personal jurisdiction. (C.A. 4th, November 4, 2016.)
Class Action
Walker v. Apple, Inc. (2016) _ Cal.App.5th _ , 2016 WL 5404080: See summary above under Attorneys.
Contracts
Alki Partners v. DB Fund Services (2016) _ Cal.App.5th _ , 2016 WL 6156327: See summary above under Attorney Fees.
Debt Collection
Mealing v. Diane Harkey for Board of Equalization 2014 (2016) _ Cal.App.5th _ , 2016 WL 6212457: The Court of Appeal affirmed the trial court’s order denying an ex parte application by a judgment creditor requesting an order under Code of Civil Procedure section 708.240(a) to prohibit defendant from making any payments to Diane Harkey to repay a loan she made to defendant. Under section 708.240(a), a judgment creditor may apply for an order restraining a third party who is indebted to a judgment debtor from making any payments to the judgment debtor. The trial court properly denied the application because Diane Harkey was not a judgment debtor, the judgment was against her husband Dan Harkey. (C.A. 4th, October 24, 2016.)
Employment
Cameron v. Sacramento Co. Employees’ Retirement System (2016) _ Cal.App.5th _ , 2016 WL 6472100: The Court of Appeal affirmed the trial court’s judgment denying a writ petition seeking to overturn defendant’s denial of plaintiff’s application for a service-connected retirement. The Court of Appeal ruled that plaintiff’s application was untimely under Government Code section 31722 because he failed to show he was continuously disabled, within the meaning of Government Code sections 31722 and 31641(a), between the discontinuance of his service and the time he filed his application for service-connected disability retirement. (C.A. 3rd, November 2, 2016.)
Goonewardene v. ADP, LLC (2016) _ Cal.App.5th _ , 2016 WL 6554981: See summary above under Civil Procedure.
Walker v. Apple, Inc. (2016) _ Cal.App.5th _ , 2016 WL 5404080: See summary above under Attorneys.
Equity (Fiduciary Duty)
ZF Micro Devices v. TAT Capital Partners (2016) _ Cal.App.5th _ , 2016 WL 6520137: The Court of Appeal reversed the judgment for TAT Capital Partners (TAT) after a jury found that ZF Micro Devices’ (ZF) cross-complaint was barred by the four-year statute of limitations for breach of fiduciary duty. The Court of Appeal concluded that the tolling doctrine applies to both permissive and compulsory cross-complaints and therefore applied to ZF’s permissive cross-complaint. ZF’s cross-complaint related back to the date that TAT filed its complaint. The cross-complaint having been timely filed, the court erred in submitting TAT’s statute of limitations defense to the jury, and the judgment for TAT was reversed. (C.A. 6th, November 3, 2016.)
Evidence
Agricultural Labor Relations Board v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 6236427: The Court of Appeal granted a writ petition seeking to overturn the trial court’s order compelling petitioner to disclose the communications between the board and its general counsel regarding approval of a proceeding for injunctive relief against Gerawan Farming, Inc. (Gerawan). The trial court erred in ordering disclosure of the communications between the board and general counsel relating to the decision to seek injunctive relief against Gerawan because those communications were protected by the attorney-client privilege. (C.A. 3rd, October 25, 2016.)
Government
City of Bakersfield v. West Park Home Owners Assn. and Friends (2016) _ Cal.App.5th _ , 2016 WL 6408001: The Court of Appeal affirmed in part and reversed in part the trial court’s judgment validating plaintiff’s proposed plan to finance road improvement projects through a public benefit corporation and pay the debt from revenues held in special funds. Although the overall financing scheme was valid, the Court of Appeal ruled that plaintiff could not use gas tax revenues as part of the financing. (C.A. 5th, October 31, 2016.)
D’Egidio v. City of Santa Clarita (2016) _ Cal.App.5th _ , 2016 WL 6208627: The Court of Appeal affirmed the trial court’s order that concluded, in light of the entire statutory scheme, that Business & Professions Code section 5270 does not preempt county- or city-enacted limitations on billboards in unincorporated areas that are stricter than the limitations set forth in the Outdoor Advertising Act (Business & Professions Code section 5200 et seq.). (C.A. 2nd, October 24, 2016.)
San Diegans For Open Government v. City of Oceanside (2016) _ Cal.App.5th _ , 2016 WL 6236428: The Court of Appeal affirmed the trial court’s judgment for defendant in an action (a complaint and a writ petition) by plaintiff alleging that defendant violated the Brown Act (Government Code, section 54950.5 et seq.) in publishing a city council agenda where a development agreement would be considered. The agenda stated that the council would consider: the developer’ s agreement to guarantee development of the subject property as “a full service resort”; an agreement “to provide a mechanism to share Transient Occupancy Tax (TOT)generated by the Project”; and a report, required by statute “documenting the amount of subsidy provided to the developer, the proposed start and end date of the subsidy, the public purpose of the subsidy.” The language of the agenda, considered as a whole, gave the public and press more than a clue the city planned to provide the project developer with a substantial and ongoing financial subsidy for the resort project. (C.A. 4th, October 25, 2016.)
Insurance (Punitive Damages)
Nickerson v. Stonebridge Life Ins. Co. (2016) _ Cal.App.5th _ , 2016 WL 6520112: The Court of Appeal affirmed the trial court’s order conditionally granting defendant’s motion for new trial if plaintiff did not accept a reduction of punitive damages from $19 million to $350,000 in an insurance bad faith case where the jury awarded $31,500 in additional damages under the policy and compensatory damages for emotional distress of $35,000. Because Defendant’s reprehensible conduct resulted in only a relatively small economic damage award, and considering its $368 million net worth, a significant ratio of punitive to compensatory damages comported with due process and the trial court properly remitted the jury’s award to the outside constitutional limit of a 10:1 ratio of punitive to compensatory damages. Brandt fees of $12,500 should have been included as compensatory damages, so the trial court was ordered to modify the judgment by reducing the punitive damage award from $19 million to $475,000. (C.A. 2nd, November 3, 2016.)
Judgments
Mealing v. Diane Harkey for Board of Equalization 2014 (2016) _ Cal.App.5th _ , 2016 WL 6212457: See summary above under Debt Collection.
Wolf Metals v. Rand Pacific Sales (2016) _ Cal.App.5th _ , 2016 WL 6216112: The Court of Appeal affirmed in part and reversed in part the trial court’s order amending a default judgment to add appellants Donald Koh and South Gate Steel, Inc. (SGS) as additional judgment debtors on the basis that Koh was defendant’s alter ego and that SGS was defendant’s successor corporation. The Court of Appeal held that, under Motores de Mexicali v. Superior Court (1958) 51 Cal.2d 172, the default judgment could not be amended to add Koh as an alter ego to the judgment, but the judgment was properly amended to add SGS as a corporate successor. (C.A. 2nd, October 25, 2016.)
Medical Malpractice (Statute of Limitations)
Drexler v. Petersen (2016) _ Cal.App.5th _ , 2016 WL 6407973: In a medical malpractice case alleging failure to timely diagnose and treat a brain tumor, the Court of Appeal reversed the trial court’s summary judgment for defendants on the basis of the expiration of the statute of limitations under Code of Civil Procedure section 340.5. When the plaintiff in a medical malpractice action alleges the defendant health care provider misdiagnosed or failed to diagnose a preexisting disease or condition, there is no injury for purposes of section 340.5 until the plaintiff first experiences appreciable harm as a result of the misdiagnosis, which is when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one. (C.A. 2nd, October 31, 2016.)
Probate
Estate of Dayan (2016) _ Cal.App.5th _ , 2016 WL 6520113: The Court of Appeal affirmed the trial court’s ruling that defendant owned a one-third interest in commercial real property and its ruling denying plaintiff’s judgment on the pleadings motion claiming that defendant violated the will’s no contest clause when he opposed a Probate Code section 850(a)(2) petition regarding the commercial real property. (C.A. 2nd, November 3, 2016.)
Punitive Damages
Nickerson v. Stonebridge Life Ins. Co. (2016) _ Cal.App.5th _ , 2016 WL 6520112: See summary above under Insurance.
Real Property
Drakes Bay Oyster Co. v. California Coastal Commission (2016) _ Cal.App.5th _ , 2016 WL 6311625: See summary above under Civil Procedure.
Nellie Gail Ranch Owners Association v. McMullin (2016) _ Cal.App.5th _ , 2016 WL 5719712: The Court of Appeal affirmed the trial court’s judgment for plaintiff, following a bench trial, quieting title and compelling defendants to remove a retaining wall and other improvements they built without plaintiff’s approval on more than 6,000 square feet of common area that plaintiff owned adjacent to defendants’ property. (C.A. 4th, filed October 3, 2016, published October 27, 2016.)
Torts (Damages, Negligence, Punitive Damages, Respondeat Superior)
Bigler-Engler v. Breg, Inc. (2016) _ Cal.App.5th _ , 2016 WL 6311108: In an action alleging medical malpractice and intentional torts arising from the use of a cold therapy device after orthopedic surgery, the Court of Appeal reversed in part and affirmed in part a judgment following a jury trial where the jury awarded $68,270.38 in economic compensatory damages and $5,127,950 in noneconomic compensatory damages to plaintiff, apportioned liability among the three defendants, and awarded punitive damages of $500,000 against defendant Dr. Chao (Chao) and $7 million against defendant Breg, Inc. (Breg). The Court of Appeal found the jury’s verdict as to the intentional concealment claim against Breg and the strict products liability claim against defendant Oasis MSO, Inc. were not supported by the evidence, and this also required reversal of the punitive damage award against Breg. The Court of Appeal also ruled that the noneconomic damages and punitive damages as to Chao (whose stipulated net worth was $3,411,577) were excessive, and those awards were reversed and remanded for a new trial unless plaintiff accepts reductions in those awards to $1,300,000 and $150,000 respectively. This decision discusses a cornucopia of attorney conduct, damages, malpractice, tort and trial issues (C.A. 4th, October 28, 2016.)
Drexler v. Petersen (2016) _ Cal.App.5th _ , 2016 WL 6407973: See summary above under Medical Malpractice.
Khosh v. Staples Construction (2016) _ Cal.App.5th _ , 2016 WL 6247658: In a personal injury action by an employee of a subcontractor against the general contractor, the Court of Appeal affirmed the trial court’s order granting summary judgment for defendant. The trial court correctly granted the motion for summary judgment because plaintiff failed to present evidence that defendant affirmatively contributed to his injuries.
Minnegren v. Nozar (2016) _ Cal.App.5th _ , 2016 WL 6157895: The Court of Appeal affirmed the trial court’s denial of a motion for new trial and a motion for a judgment notwithstanding the judgment after the jury returned a verdict for defendant in an auto accident case. Negligence is a question of fact, and the Court of Appeal affirmed the trial court’s decision because there was evidence that defendant driver exercised at least some care and therefore might have acted reasonably even if his action ultimately led to the car collision. (C.A. 2nd, October 24, 2016.)
Pierson v. Helmerich & Payne International Drilling Co. (2016) _ Cal.App.5th _ , 2016 WL 5845771: The Court of Appeal affirmed the trial court’s summary judgment for defendant employer in a personal injury case for a traffic accident caused by an oil rig worker driving home after work who was providing two other employees a ride to their employer-paid hotel. The Court of Appeal ruled that the undisputed facts established that the going and coming rule applied in this case. It could not be reasonably inferred from the undisputed facts that the employer impliedly required or requested the driver to provide transportation to his supervisor between the hotel and the jobsite. The supervisor’s requests for such rides were personal in nature and are not reasonably imputed to the employer. The case was comparable with other cases in which the going and coming rule was applied to employees who made their own carpooling or ridesharing arrangements. (C.A. 5th, filed October 6, 2016, published October 25, 2016.)
Trusts and Estates
Humboldt County Adult Protective Services v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 6208628: See summary above under Attorney Fees.
Copyright © 2016 Monty A. McIntyre, Esq. All Rights Reserved
