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 SUPREME COURT
Real Property
Horiike v. Coldwell Banker (2016) _ Cal.5th _ , 2016 WL 6833005: The California Supreme Court affirmed the Court of Appeal’s decision that reversed the jury’s verdict for defendant at trial. An associate licensee owed to the buyer a duty under Civil Code section 2079.13(b) to learn and disclose all information materially affecting the value or desirability of the property, including the discrepancy between the square footage of the residence‘s living area as advertised and as reflected in publicly recorded documents. (November 21, 2016.)
Torts
Kesner v. Superior Court (2016) _ Cal.5th _ , 2016 WL 7010174: The California Supreme Court consolidated two cases that addressed the issue of whether employers or landowners owe a duty of care to prevent secondary exposure to asbestos. The Court reversed the judgment in Haver v. BNSF Railway Company and vacated the judgment in Kesner v. Superior Court and remanded both actions for further proceedings. The duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers. Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission. This duty also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability. This duty extends only to members of a worker’s household. (December 1, 2016.)
CALIFORNIA COURTS OF APPEAL
Arbitration
Condon v. Daland Nissan (2016) _ Cal.App.5th _ , 2016 WL 6553961: The Court of Appeal reversed the trial court’s order confirming an arbitration award of $180,175.34 for plaintiff and denying defendants’ motion to compel a new arbitration before a three-arbitrator panel as authorized by the arbitration agreement when the award against a party exceeded $100,000. The lack of “appellate rules” was no impediment to ADR Services, Inc. (ADR) providing a new arbitration. Defendants did not insist on a new arbitral forum and indicated they would be happy to have the new arbitration with ADR. Plaintiff’s motion to confirm the award should have been denied, and defendants’ request for an order requiring a new arbitration should have been granted, specifying arbitration before ADR. (C.A. 1st, filed November 4, 2016, published November 30, 2016.)
Attorneys
Foxen v. Carpenter (2016) _ Cal.App.5th _ , 2016 WL 7017964: The Court of Appeal affirmed the trial court’s order sustaining a demurrer on the basis of the statute of limitations in an action where plaintiff alleged numerous alleged wrongful acts by her attorneys who had represented her in a personal injury action. Most of the causes of action were barred by the one year statute of limitation in Code of Civil Procedure section 340.6. The causes of action for fraud and conversion were barred by the three year statute of limitations in Code of Civil Procedure section 338(c) because the complaint was filed more than three years after plaintiff first discovered the alleged wrongdoing. (C.A. 2nd, filed November 3, 2016, published December 1, 2016.)
Civil Code
Elliott Homes, Inc. v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 7030712: See summary below under Real Property.
McNair v. City and County of San Francisco (2016) _ Cal.App.5th _ , 2016 WL 6879277: The Court of Appeal affirmed the trial court’s summary judgment on an intentional infliction of emotional distress cause of action and its nonsuit on a breach of contract action in a case arising out of a letter written by a doctor to the Department of Motor Vehicles disclosing her patient’s confidential medical history and health conditions that resulted in his commercial driver’s license being temporarily revoked and the loss of his job as a bus driver. Both of plaintiff’s claims were barred by the litigation privilege in Civil Code section 47(b). (C.A. 1st, November 22, 2016.)
Civil Procedure (Anti-SLAPP, CCP 473)
Gee v. Greyhound Lines, Inc. (2016) _ Cal.App.5th _ , 2016 WL 6835513: The Court of Appeal affirmed the trial court’s order granting a motion to set aside a dismissal under Code of Civil Procedure section 473(b). Section 473(b) can provide relief when an action is dismissed due to plaintiff’s counsel’s mistake or inexcusable neglect related to the failure to pay change of venue fees. Because this was plaintiff’s initial application for relief under section 473(b) and not a request to reconsider a denial of relief under that section, there was no requirement that she file a motion for reconsideration under Code of Civil Procedure section 1008. The Court of Appeal found there was sufficient evidence to justify the relief granted. (C.A. 3rd, November 21, 2016.)
Medical Marijuana, Inc. v. ProjectCBD.com (2016) _ Cal.App.5th _ , 2016 WL 6835522: The Court of Appeal affirmed, but on different grounds, the trial court’s denial of an anti-SLAPP motion to strike causes of action alleging libel and false light. The trial court found the causes of action arose from protected activities but also ruled that plaintiffs had demonstrated a probability of prevailing on the merits. The Court of Appeal, however, found that the first amended complaint did not allege any conduct on the part of the defendants giving rise to the claims for libel or false light. As a result, defendants could not demonstrate that their actions were protected under the anti-SLAPP statute. (C.A. 4th, November 21, 2016.)
Parisi v. Mazzaferro (2016) _ Cal.App.5th _ , 2016 WL 6901269: The Court of Appeal affirmed the trial court’s civil harassment restraining order under Code of Civil Procedure section 527.6, but remanded the case to the trial court to more precisely define the scope of conduct prohibited by the restraining order because it lacked the constitutionally mandated precision required when dealing with First Amendment rights. (C.A.1st, November 23, 2016.)
Class Actions
Driscoll v. Granite Rock (2016) _ Cal.App.5th _ , 2016 WL 6994923: The Court of Appeal affirmed the trial court’s judgment for defendant, following a bench trial, in a class action alleging primarily that defendant failed to provide off-duty meal periods and/or failed to pay plaintiffs one additional hour of pay for duty-free meal periods. Defendant affirmatively notified its employees that they were entitled to a 30-minute off-duty meal period free from its control through its policies, postings and communications. Defendant did nothing to interfere with drivers’ ability to take an off-duty meal period. Drivers did not take off-duty meal periods because they did not want them. There was substantial evidence presented at trial to support the trial court’s finding that defendant provided its concrete mixer drivers with an off-duty meal period as required by law. (C.A. 6th, November 30, 2016.)
Lubin v. Wackenhut Corp. (2016) _ Cal.App.5th _ , 2016 WL 6835499: In a class action alleging that defendant had violated California labor laws by failing to provide employees with off-duty meal and rest breaks and by providing inadequate wage statements, the trial court initially granted class certification but later granted defendant’s motion for decertification after the United States Supreme Court reversed a grant of class certification in Wal-Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338 (Wal-Mart). The Court of Appeal reversed the trial court’s order granting the motion for decertification because reassessment of the class certification in this case was not warranted by Wal-Mart. (C.A. 2nd, November 21, 2016.)
Corporations
Goles v. Sawhney (2016) _ Cal.App.5th _ , 2016 WL 6875926: The Court of Appeal reversed the trial court’s order, under Corporations Code section 2000(c), specifying $139,666.67 as the buyout value of plaintiff’s 36.7% minority shareholder interest in Katana Software, Inc. After the three appraisers could not agree on a value and submitted three different valuations, the trial court erred in “confirming” the reports “in their entirety” and averaging the numbers in its valuation order. This is not allowed by section 2000. In addition, in valuing the interest the three appraisals improperly failed to consider the breach of fiduciary duty claim alleging “looting” of the corporation, and improperly discounted the minority interest for lack of control in violation of Corporations Code section 2000. (C.A. 2nd, November 22, 2016.)
Education
Doe v. Regents of the University of California (2016) _ Cal.App.5th _ , 2016 WL 6879293: The Court of Appeal reversed the trial court’s judgment requiring defendant to set aside its findings and suspension sanctions issued against a male UCSD student after he was found to have violated the Student Conduct Code as a result of a sexual encounter with a female student. The Court of Appeal found that substantial evidence supported defendant’s decision and findings, the process was fair, and the sanctions were not an abuse of discretion. (C.A. 4th, November 22, 2016.)
Department of Health Care Services v. Office of Administrative Hearings (2016) _ Cal.App.5th _ , 2016 WL 6962299: The Court of Appeal affirmed the trial court’s order denying writ petitions seeking an order compelling the Director of the Department of General Services, Office of Administrative Hearings, Special Education Division to set aside the order and decision issued by one of its administrative law judges in the matter of Parents on Behalf of Student v. Tuolumne County California Children’s Services. After conducting its own independent review of the mandamus claims, the Court of Appeal concluded that the trial court properly denied the requests for writs of mandamus and declaratory relief and awarded attorney fees to the student. (C.A. 5th, November 29, 2016.)
Elections
Eblovi v. Blair (2016) _ Cal.App.5th _ , 2016 WL 7011551: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to compel the city clerk to strike both the “Primary Argument Against Measure F” and the “Rebuttal to Argument in Favor of Measure F” because they were not filed by the city council. Petitioner argued that, under Elections Code section 9282(a), only the city council could file an opposition statement against the measure. The trial court correctly ruled that the law in this area should be interpreted liberally, not restrictively, because it deals with constitutionally protected freedom of speech and the right to a fair election. (C.A. 1st, December 1, 2016.)
Employment
Driscoll v. Granite Rock (2016) _ Cal.App.5th _ , 2016 WL 6994923: See summary above under Class Actions.
Lubin v. Wackenhut Corp. (2016) _ Cal.App.5th _ , 2016 WL 6835499: See summary above under Class Actions.
Evidence
LAOSD Asbestos Cases (2016) _ Cal.App.5th _ , 2016 WL 6875924: In a case alleging damages from asbestos exposure, the Court of Appeal affirmed the jury verdict for defendant. The jury found that defendant‘s conduct exposed plaintiff to asbestos, but that defendant was not negligent. The trial court did not err by (1) excluding two exhibits containing Southern California Gas Company specifications for contractors, (2) allowing the president of defendant to use a contract from a later time period to refresh his recollection about the content of earlier contracts, and (3) giving the jury two instructions: one about employer duties, and another stating that defendant was required to adhere to a “professional” standard of care. (C.A. 2nd, November 22, 2016.)
Government
City of Palo Alto v. Public Employment Relations Board (2016) _ Cal.App.5th _ , 2016 WL 6902091: The Court of Appeal granted a writ of extraordinary relief under Government Code section 3509.5. The Court of Appeal affirmed the Public Employment Relations Board’s (PERB) conclusion that the International Association of Firefighters, Local 1319, AFL-CIO had sufficiently requested to meet and consult with the City of Palo Alto (City) regarding the vote of its City Council to place on the ballot a measure to repeal a City charter provision requiring that impasses in negotiations regarding wages, hours, and other terms and conditions of employment for the City’s police and firefighters be submitted to binding interest arbitration. The Court of Appeal also held that the constitutional issues raised by the City were meritless. However, the Court of Appeal ruled that the PERB’s order directing the City Council to rescind its resolution violated the doctrine of separation of powers by ordering a legislative body to take legislative action. The PERB’s decision was annulled and remanded back to the PERB with directions to strike that remedy. (C.A. 6th, November 23, 2016.)
Sutter Health v. Eden Township Healthcare District (2016) _ Cal.App.5th _ , 2016 WL 6958654: The Court of Appeal affirmed the part of the trial court’s order granting defendant’s motion to pay a $19.5 million judgment over ten years under Government Code section 970.6, but it reversed the portion of the trial court’s order that effectively lowered the judgment interest under Government Code section 985 from the date of the judgment to the date of the order. While the postjudgment interest rate established by section 984 was appropriate to apply prospectively, the Court of Appeal found no statutory basis for reducing the interest accrued prior to the trial court’s grant of relief under section 970.6. (C.A. 1st, November 29, 2016.)
Insurance
Tidwell Enterprises v. Financial Pacific Insurance Company, Inc. (2016) _ Cal.App.5th _ , 2016 WL 6962291: The Court of Appeal reversed the trial court’s order that had granted summary judgment for the defendant on the basis that the fire occurred over one year after the liability policy lapsed. The Court of Appeal ruled that defendant was obligated to defend the fire loss claim because there was a potential for liability under the defendant’s policies. The fire may have been the culmination of an integrated process of continuing and progressive property damage without which the fire would never have occurred, and some of that property damage could have occurred during the periods when defendant’s policies were in effect. (C.A. 3rd, November 29, 2016.)
Judgments (Execution Sales, Periodic Payments)
Lee v. Rich (2016) _ Cal.App.5th _ , 2016 WL 6995300: The Court of Appeal reversed the trial court’s order cancelling a sheriff’s deed issued to defendant who had purchased a single-family residence at an execution sale held to satisfy a judgment against plaintiff by judgment creditor Spyglass Hill Community Association (the HOA). Under Code of Civil Procedure Section 701.680(a), the sale of the property to defendant was absolute and could not be set aside for any reason. The Court of Appeal did not alter the trial court’s order granting plaintiff’s motion to vacate the judgment on the ground it had been obtained by the HOA through fraud. It found, however, that defendant was an indispensible party to that motion and, because defendant was never served with the motion, he was not bound by it. As to defendant the default judgment was not void. (C.A. 4th, November 30, 2016.)
Sutter Health v. Eden Township Healthcare District (2016) _ Cal.App.5th _ , 2016 WL 6958654: See summary above under Government.
Labor
City of Palo Alto v. Public Employment Relations Board (2016) _ Cal.App.5th _ , 2016 WL 6902091: See summary above under Government.
Real Property (CEQA, Construction Defect, Execution Sales)
Elliott Homes, Inc. v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 7030712: The Court of Appeal granted a writ petition compelling the trial court to vacate its order denying a motion for a stay and enter a new order granting the stay. Seventeen plaintiff homeowners filed an action for construction defects without first complying with the procedures in the Right to Repair Act (Act) set forth in Civil Code sections 895 through 945.5. The trial court erred in not granting the motion for a stay by the builder under section 930(b) because the Act applies to all actions seeking recovery of damages arising out of or related to deficiencies in residential construction, and the common law causes of action related to single-family homes asserted by the plaintiff homeowners were not claims excepted from the Act. (C.A. 3rd, December 2, 2016.)
Lee v. Rich (2016) _ Cal.App.5th _ , 2016 WL 6995300: See summary above under Judgments.
Mission Bay Alliance v. Office of Community Investment and Infrastructure et al. (2016) _ Cal.App.5th _ , 2016 WL 6962504: The Court of Appeal affirmed the trial court’s denial of two consolidated writ petitions seeking to set aside the certification of the environmental impact report and related permits for the construction of an arena to house the Golden State Warriors basketball team and the construction of adjacent facilities in the Mission Bay South redevelopment plan area of San Francisco. The Court of Appeal found no merit in petitioners’ objections. Although in some instances defendants’ analysis of potential environmental impacts might have been expanded, in general the record reflected a thorough and exhaustive study of all environmental impacts to be anticipated that were not considered in an earlier 1998 final subsequent environmental impact report and identification of numerous mitigation measures to lessen adverse impacts to the extent feasible. (C.A. 1st, November 29, 2016.)
U.S. Financial v. McLitus (2016) _ Cal.App.5th _ : The Appellate Department of the San Diego County Superior Court reversed an unlawful detainer judgment. The trial court erred in ruling that title was perfected on the day the three-day notice was served. The Appellate Department ruled that the sale was perfected by that day, but title was not yet perfected, so the three-day notice was invalid. (Appellate Department of San Diego Superior Court, December 2, 2016.)
Westside Estate Agency v. Randall (2016) _ Cal.App.5th _ , 2016 WL 7011334: The Court of Appeal affirmed the trial court’s order sustaining a demurrer as to all causes of action in an action where plaintiff real estate broker was attempting to recover a broker fee even though there was no written agreement establishing a broker-client relationship. The trial court correctly ruled that this violated the Statute of Frauds in California Civil Code section 1624(a)(4). (C.A. 2nd, December 1, 2016.)
Torts
Elliott Homes, Inc. v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 7030712: See summary above under Real Property.
Kase v. Metalclad Insulation Corporation (2016) _ Cal.App.5th _ , 2016 WL 6892215: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in an asbestos case. Regarding the design defect claims, the Court of Appeal ruled that the Navy’s procurement of asbestos insulation for its nuclear submarines came within the ambit of the government contractor defense in Boyle v. United Technologies Corp. (1988) 487 U.S. 500. The Court of Appeal also affirmed the summary judgment on the failure to warn claims on the basis that the evidence was insufficient to raise a triable issue as to causation. (C.A. 1st, November 23, 2016.)
LAOSD Asbestos Cases (2016) _ Cal.App.5th _ , 2016 WL 6875924: See summary above under Evidence.
Copyright © 2016 Monty A. McIntyre, Esq.
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