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 Actions | Construction | Consumer Protection
Employment | Insurance | Medical Malpractice | Probate | Professional Liability
Real Property | Torts | Trusts and Estates
Locations: San Diego | Irvine | Los Angeles | San Francisco
To schedule: call Kelsey Carroll at (619) 233-1323, or email kelsey@adrservices.org.
CALIFORNIA SUPREME COURT
Attorney Fees
L.A. County Board of Supervisors v. Superior Court (2016) _ Cal.5th _ : The California Supreme Court reversed the judgment of the Court of Appeal holding that attorney invoices sent by outside counsel to a public agency were categorically privileged and therefore exempt from disclosure under the California Public Records Act (PRA; Government Code, section 6250 et seq.). The California Supreme Court ruled that the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure, but invoices for work in pending and active legal matters are protected by the privilege because they are closely related to attorney-client communications. (December 29, 2016.)
Employment
Augustus v. ABM Security Services (2016) _ Cal.5th _ , 2016 WL 7407328: The California Supreme Court reversed the Court of Appeal’s decision reversing the trial court’s order that had granted plaintiffs’ motion for summary judgment and awarded them $90 million for wage and hour violations by defendant. California law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. (December 22, 2016.)
Evidence
L.A. County Board of Supervisors v. Superior Court (2016) _ Cal.5th _ : See summary above under Attorney Fees.
CALIFORNIA COURTS OF APPEAL
Arbitration
Flores v. Nature’s Best Distribution (2016) _ Cal.App.5th _ : The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration in a case where the terminated plaintiff alleged several claims under the California Fair Employment and Housing Act (Government Code, section 12940 et seq.). The Court of Appeal found the arbitration agreement was ambiguous regarding (1) whether the arbitration provision of the agreement (not a grievance and arbitration procedure of a collective bargaining agreement) applied to any or all of plaintiff’s claims against any or all of defendants in the instant action and (2) the governing rules and procedures for any such arbitration. The Court of Appeal could not conclude the parties had reached agreement on the matter of submitting any or all of plaintiff’s claims to final and binding arbitration as contemplated by the agreement. (C.A. 4th, filed December 2, 2016, published December 27, 2016.)
Attorney Fees
Khan v. Shim (2016) _ Cal.App.5th _ , 2016 WL 7473800: The Court of Appeal affirmed in part and reversed in part the trial court’s order finding defendant was the prevailing party and awarding attorney fees after plaintiff dismissed, before trial, her complaint alleging contract and tort theories. The Court of Appeal found that Civil Code section 1717(b)(2) barred the award of attorney fees after a pretrial voluntary dismissal related to the defense of contract causes of action. The Court of Appeal, however, found that the fee provision in the parties’ agreement was broad enough to cover fees for defendant’s defense against plaintiff’s tort actions. It remanded the matter to the trial court to determine what fees can be properly awarded to defendant and whether the fees can be allocated between the two types of claims. (C.A. 6th, December 29, 2016.)
Civil Procedure (Anti-SLAPP, Preliminary Injunctions)
Integrated Dynamic Solutions v. Vitavet Labs (2016) _ Cal.App.5th _ , 2016 WL 7406411: The Court of Appeal affirmed the trial court’s order granting a preliminary injunction to defendant/cross-complainant that required plaintiff/cross-defendant software consultant to deliver computer source code and technical specifications to defendant. Defendant had hired plaintiff to create custom-built software, and plaintiff had delivered an unfinished version of the software but withheld the source code and technical specifications needed to finish it. While a preliminary injunction that alters the status quo is reserved for “extreme cases” where the right to relief is “clearly established” (City of Corona v. AMG Outdoor Advertising, Inc. (2016) 244 Cal.App.4th 291, 299), this was an extreme case, and the injunction was properly issued. (C.A. 2nd, December 22, 2016.)
McNair v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 7428409: The Court of Appeal granted a writ petition ordering the trial court to vacate its order accepting a peremptory challenge under Code of Civil Procedure section 170.6(a)(2) that had been filed after the trial court’s ruling on an anti-SLAPP motion had been partially reversed by the Court of Appeal. Code of Civil Procedure section 170.6 (a)(2) allows a party to exercise a second peremptory challenge only after prevailing in an appeal from a final judgment, but not following reversal of an interim decision. (C.A. 2nd, December 23, 2016.)
Newport Harbor Ventures v. Morris Cerullo World Evangelism (2016) _ Cal.App.5th _ , 2016 WL 6996231: The Court of Appeal affirmed, but for some different reasons, the trial court’s order denying an anti-SLAPP motion to strike the third amended complaint. The trial court denied the motion on the basis that it was untimely because it was not filed within 60 days of the first complaint, the first amended complaint or the second amended complaint. The Court of Appeal agreed that the anti-SLAPP was untimely as to the first two causes of action that were alleged in all the complaints. The motion, however, was timely as to the two new causes of action first alleged in the third amended complaint. As to those causes of action, the Court of Appeal found the motion was properly denied. Although the new causes of action arose out of protected activity, plaintiffs met their burden of establishing a probability of prevailing on the merits. (C.A. 4th, filed November 30, 2016, published December 22, 2016.)
Employment
Cal Fire Local 2881 v. CalPERS (2016) _ Cal.5th _ : The Court of Appeal affirmed the trial court’s decision denying plaintiff’s petition for writ of mandate that sought to compel CalPERS to allow state employees to purchase up to five years of retirement service credit even though the Legislature had withdrawn this right when it amended Government Code section 20909 and enacting section 7522.46. The trial court’s conclusion that the Legislature’s modification of the statutory law governing the airtime service credit was wholly reasonable and carried some material relation to the theory of a pension system and its successful operation. While plaintiffs may believe they were disadvantaged by the amendments, the law is quite clear that they are entitled only to a reasonable pension, not one providing fixed or definite benefits immune from modification or elimination by the governing body. (C.A. 1st, December 30, 2016.)
City of Los Angeles v. City of LA Employee Relations Board (2016) _ Cal.5th _ : The Court of Appeal reversed the trial court’s order sustaining a demurrer to a writ petition. Government Code section 3509.5 does not control review of a decision of the City’s Employee Relations Board. Such decisions are reviewable on a writ petition brought in the superior court. (C.A. 2nd, December 30, 2016.)
Flores v. Nature’s Best Distribution (2016) _ Cal.App.5th _ : See summary above under Arbitration.
Government
Cal Fire Local 2881 v. CalPERS (2016) _ Cal.5th _ : See summary above under Employment.
City of Los Angeles v. City of LA Employee Relations Board (2016) _ Cal.5th _ : See summary above under Employment.
Insurance (Occurrence, Supplementary Payments)
Navigators Specialty Insurance Company v. Moorefield Construction (2016) _ Cal.App.5th _ , 2016 WL 7439032: The Court of Appeal affirmed in part and reversed in part the trial court’s decision, following a bench trial, finding that defendant needed to repay plaintiff the $1 million plaintiff had paid as part of a construction defect lawsuit settlement. The trial court correctly found there was occurrence and therefore no coverage for the flooring failure because defendant, the general contractor, had directed the flooring subcontractor to install the flooring despite Moorefield’s knowledge that moisture vapor emission from the concrete slab exceeded specifications. The trial court erred in finding no supplementary payments coverage. Supplementary payments are tied to an insurer’s duty to defend, not the insurer’s duty to indemnify. They include attorney fees that could be taxable as costs against the insured, and, in the underlying case, the construction contract had an attorney fees provision. The plaintiff insurance carrier had the burden of proving what portion of the $1 million payment was attributable to supplementary payments. The Court of Appeal remanded for a new trial limited to the issue of the amount of the $1 million paid by plaintiff that was attributable to damages, not attorney fees and costs of suit under the supplementary payments provision. (C.A. 4th, December 27, 2016.)
Copyright © 2016 Monty A. McIntyre, Esq.
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