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 Genevieve Kenizwald at (619) 233-1323, or email gen@adrservices.org.
CALIFORNIA SUPREME COURT
Consumer Protection
Raceway Ford Cases (2016) _ Cal.5th _ , 2016 WL 7241420: The California Supreme Court affirmed in part and reversed in part the ruling of the Court of Appeal and disapproved Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983 to the extent it is inconsistent with this decision. The Automobile Sales Finance Act (ASFA), also known as the Rees-Levering Motor Vehicle Sales and Finance Act (Civil Code, section 2981 et seq.) is a consumer protection statute that governs the sale of vehicles where the buyer finances all or part of the car‘s purchase price. The Supreme Court ruled that defendant did not violate ASFA when, after agreeing to an initial finance contract, it would enter into a subsequent finance contract with a buyer and backdate the second contract to the date of the first contract. Raceway did violate ASFA when it disclosed inaccurate smog fees, but plaintiffs were not entitled to a remedy under ASFA because the violation was due to an accidental or bona fide error in computation. (Civil Code section 2983(a).) (December 15, 2016.)
Government
Orange Citizens for Parks etc. v. Superior Court (2016) _ Cal.5th _ , 2016 WL 7241419: The California Supreme Court reversed the Court of Appeal decision approving the approval of a residential development project by the City of Orange (City). After the City approved the developer’s request to amend its general plan and permit development, plaintiffs challenged the amendment by referendum. The City then argued there was no need to amend its general plan to approve the project because a resolution from 1973 permitted residential development on the property. The Supreme Court ruled that, in light of the contents of the City’s 2010 General Plan, no reasonable person could interpret that plan to include the 1973 resolution and concluded that the City abused its discretion in interpreting the 2010 General Plan to permit residential development on the property. (December 15, 2016.)
Real Property
Orange Citizens for Parks etc. v. Superior Court (2016) _ Cal.5th _ , 2016 WL 7241419: See summary above under Government.
Taxes
In re Transient Occupancy Tax Cases (2016) _ Cal.5th _ , 2016 WL 7187624: The California Supreme Court affirmed the Court of Appeal’s ruling that had affirmed the trial court’s order granting a writ of mandate in favor of defendant online travel companies (OTC) regarding the City of San Diego’s transient occupancy tax. The OTCs are not liable for the tax because the ordinance imposes tax on rent “charged by the Operator” and OTCs are not operators or managing agents of the hotels. Moreover, the markup the OTCs charge for their services is not part of the rent subject to the tax. (December 12, 2016.)
CALIFORNIA COURTS OF APPEAL
Attorney Fees
569 East County etc. v. Backcountry etc. (2016) _ Cal.App.5th _ , 2016 WL 7048007: The Court of Appeal affirmed the trial court’s order awarding defendant attorney fees of $30,752.86, not the requested sum of $152,529.15, after defendant obtained an order granting its anti-SLAPP motion. The abuse of discretion standard of review was applied, and the Court of Appeal affirmed the trial court’s finding that a reasonable attorney fee rate was $275 per hour, and affirmed the trial court’s decision to reduce the hours claimed from over 200 to approximately 100. (C.A. 4th, December 5, 2016.)
Active Properties LLC v. Cabrera (2016) _ Cal.App.5th _ , 2016 WL 7176689: The Court of Appeal reversed the trial court’s post-trial order denying defendant’s request for attorney fees under Code of Civil Procedure section 1174.21. Standard of review: de novo. After defendant won a jury verdict, she filed a motion for attorney fees asserting that plaintiff had filed the instant unlawful detainer action while substandard conditions in the apartment unit existed for more than 35 days in violation of Civil Code section 1942.4. The trial court denied the motion on the basis that plaintiff’s Civil Code section 1942.4 liability had not been litigated at trial before the jury. The Court of Appeal agreed with defendant that her entitlement to fees under section 1174.21 was properly to be determined by the court in the context of a post-trial noticed motion. (C.A. 2nd, December 9, 2016.)
Civil Procedure (anti-SLAPP, CCP 473, Motion for New Trial)
569 East County etc. v. Backcountry etc. (2016) _ Cal.App.5th _ , 2016 WL 7048007: See summary above under Attorney Fees.
Gee v. Estate of James Charles Jewett (2016) _ Cal.App.5th _ , 2016 WL 7105919: 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, December 6, 2016. The prior decision dated November 21, 2016 was vacated.)
Lee v. Silveira (2016) _ Cal.App.5th _ , 2016 WL 7048004: The Court of Appeal reversed the trial court’s order denying an anti-SLAPP motion to strike and directed the trial court to grant the anti-SLAPP motion as to each defendant. Standard of Review: De Novo. In an action for declaratory relief by three homeowner association board members against six other board members and the association manager, the Court of Appeal ruled the court erred when it found the gravamen of plaintiffs’ complaint did not involve protected activity under section Code of Civil Procedure section 425.16. The Court of Appeal also concluded plaintiffs could not show a probability they would prevail on their claim. (C.A. 4th, December 8, 2016.)
Mendoza v. JPMorgan Chase Bank (2016) _ Cal.App.5th _ , 2016 WL 7217199: See summary below under Real Property.
Ryan v. Crown Castle NG Networks (2016) _ Cal.App.5th _ , 2016 WL 7217274: The Court of Appeal reversed the trial court’s order denying a motion for a new trial on damages only following a jury verdict for plaintiff that awarded damages of $73,522 in an action by a former employee alleging his former employer breached a promise to grant him lucrative stock options as a condition of his employment. The trial judge erred by failing to weigh and make an independent assessment of the adequacy of the verdict. The verdict was unmistakably unsound. If viewed as an award of tort damages, it had no foundation in law, and if viewed as an award of contract damages, it had no foundation in fact. The Court of Appeal ruled that the findings of liability were sufficiently suspect that a retrial could not fairly be limited to damages, and it directed the court to conduct a new trial on all issues unless plaintiff elects to stand on the previous judgment. (C.A. 6th, December 13, 2016.)
Wilson v. Cable News Network Inc. (2016) _ Cal.App.5th _ , 2016 WL 7217201: The Court of Appeal reversed the trial court’s order granting defendants’ anti-SLAPP motion to strike plaintiff’s complaint alleging discrimination, retaliation, wrongful termination, and defamation. Standard of Review: De Novo. The trial court erred in finding the employment related causes of action subject to the motion to strike because defendants’ “behind-the-scene treatment” of a “behind-the-scene producer” was neither in furtherance of defendants’ free speech nor in connection with a matter of public interest. The Court of Appeal also ruled there was no connection between defendants’ allegedly defamatory statements about plaintiff and a public issue or issue of public interest. (C.A. 2nd, December 13, 2016.)
Class Actions
Veera v. Banana Republic (2016) _ Cal.App.5th _ , 2016 WL 7242539: The Court of Appeal reversed the trial court’s summary judgment for defendant in a putative class action alleging causes of action under the Unfair Competition Law (Business & Professions Code, section 17200 et seq.), the False Advertising Law (Business & Professions Code, section 17500 et seq.) and the Consumers Legal Remedies Act (Civil Code, section 1750 et seq.) based upon defendant allegedly placing false or misleading signs in store windows advertising a 40 percent off sale that did not disclose that the discount applied only to certain items. The Court of Appeal found that, on the evidence presented, plaintiffs had raised a triable issue as to whether they lost money or property sufficient to qualify as an economic injury and whether that economic injury was caused by the unfair business practice or false advertising. (C.A. 2nd, December 15, 2016.)
Consumer Protection
Veera v. Banana Republic (2016) _ Cal.App.5th _ , 2016 WL 7242539: See summary above under Class Actions.
Contracts
Thompson v. Asimos (2016) _ Cal.App.5th _ , 2016 WL 7243521: The Court of Appeal affirmed in part and reversed in part the trial court’s judgment, following a bench trial, in favor of plaintiff in an action where both parties alleged breach of contract and tort claims against one another that arose from an agreement by plaintiff to use defendant’s real estate broker license in conducting plaintiff’s “colocation services” to advise and consult companies involved in managing or locating themselves in data centers which house computer servers and other networking equipment. The Court of Appeal affirmed the trial court’s rejection of all of defendant’s claims against plaintiff and its determination of liability against defendant for breach of contract, but it vacated the damages award and remanded for recalculation and clarification of the amount awardable. The Court of Appeal also affirmed the trial court’s liability findings against defendant on plaintiff’s claims for unfair competition and trademark infringement. (C.A. 1st, December 15, 2016.)
Conservatorships
Conservatorship of B.C. (2016) _ Cal.App.5th _ : The Court of Appeal affirmed the trial court’s order granting letters of conservatorship to respondent C.S. Probate conservatorships do not require a personal waiver of the conservatee’s right to a jury trial because the proceedings pose no threat of confinement and are conducted according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee. (Probate Code section 1827.) B.C.’s attorney had authority to waive a jury trial on her behalf, even if the trial court failed to recite that B.C. had a right to a jury. The Court of Appeal also found that B.C.’s opposition to C.S.’s petition was fully litigated, satisfying a Probate Code requirement that B.C. be consulted about the proposed conservatorship. (Probate Code section 1828(b).) Finally, the record supported the trial court’s finding that B.C. could take care of her own health needs and her husband could not be trusted to do so. (C.A. 2nd, December 16, 2016.)
Employment
Ryan v. Crown Castle NG Networks (2016) _ Cal.App.5th _ , 2016 WL 7217274: See summary above under Civil Procedure.
Wilson v. Cable News Network Inc. (2016) _ Cal.App.5th _ , 2016 WL 7217201: See summary above under Civil Procedure.
Evidence
Riske v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 7189858: The Court of Appeal reversed the trial court’s order denying plaintiff’s motion under Evidence Code sections 1043 and 1045 to obtain disclosure of certain confidential personnel records of peace officers who had been selected for the positions to which plaintiff had applied. Plaintiff sued the City of Los Angeles alleging the Los Angeles Police Department had retaliated against him for protected whistleblower activity by failing to assign or promote him to several positions, selecting instead less qualified candidates. The Court of Appeal directed the superior court to vacate its order and enter a new order requiring the City to produce the reports sought by plaintiff for an in camera inspection pursuant to Evidence Code section 1045 and to thereafter order production of all discoverable information. If a plaintiff can demonstrate the officer’s personnel records are material to the subject matter of the litigation, the records must be produced by the custodian of records and reviewed by the court at an in camera hearing in accordance with the statutory procedures to assess the discoverability of the information contained in them. The court must then order production of those records that are relevant and not otherwise protected from disclosure. (C.A. 2nd, December 12, 2016.)
Insurance (Equitable Contribution)
Advent v. National Union Fire Insurance Company (2016) _ Cal.App.5th _ , 2016 WL 7100489: The Court of Appeal affirmed the trial court’s rulings granting summary judgment for National Union Fire Insurance Company (National Union) and denying a motion for summary judgment by intervenor Topa Insurance Company (Topa). An employee of subcontractor Johnson Western Gunite (Johnson), who was seriously injured on the construction site, sued and ultimately settled for $10 million. Topa, which had issued a $5 million excess commercial liability policy to the general contractor Advent, Inc. (Advent), paid $5 million of the settlement funds. National, which had issued a $1 million commercial liability policy and a $5 million excess policy to subcontractor Johnson, paid $1 million of the settlement funds. Topa intervened in an action against National and sought equitable contribution for its $5 million contribution to the settlement, equitable subrogation, and declaratory relief. The trial court properly rejected Topa’s arguments that Advent was an additional insured under the primary and excess policies issued by National, and that coverage was provided under the National policies because the undisputed facts demonstrated a potential that Johnson or its employee contributed to the employee’s injuries. (C.A. 6th, December 6, 2016.)
Real Property
Active Properties LLC v. Cabrera (2016) _ Cal.App.5th _ , 2016 WL 7176689: See summary above under Attorney Fees.
Alereza v. Chicago Title Company (2016) _ Cal.App.5th _ , 2016 WL 6775982: The Court of Appeal affirmed the trial court’s order granting a nonsuit to defendant. Standard of review: de novo. Defendant did not owe a duty of care to Alereza because he was not a party to the escrow, not mentioned in the escrow instructions as a third party beneficiary, and did not sustain his losses as a direct result of the escrow company’s negligence. (C.A. 3rd, filed November 16, 2016, published December 9, 2016.)
Beach Break Equities v. Lowell (2016) _ Cal.App.5th _ , 2016 WL 6879290: The Court of Appeal reversed the trial court’s order finding that defendant was not entitled to a restitution hearing because he had not filed an affirmative cross-complaint and its dismissal of the action, even though the superior court appellate department had reversed an unlawful detainer possession order, remanded for trial, and expressly ordered that defendant was entitled to seek restitution for any damages caused by the premature eviction. The trial court erred because defendant was entitled to a restitution hearing even without filing a cross-complaint. (C.A. 4th, filed November 22, 2016, published December 14, 2016.)
Mendoza v. JPMorgan Chase Bank (2016) _ Cal.App.5th _ , 2016 WL 7217199: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend in an action alleging wrongful foreclosure, declaratory relief, and quiet title. The Court of Appeal ruled that a post-closing date transfer into a New York securitized trust was voidable because New York law provides that defects in the securitization of loans can be ratified by the beneficiaries of the trusts established to hold the mortgage-backed securities. Because the California Supreme Court in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 held that a borrower has standing to allege that an assignment of the promissory note and deed of trust to the foreclosing party is void, not voidable, plaintiff did not have standing to challenge the alleged irregularities in the securitization of her loan. (C.A. 3rd, December 13, 2016.)
Property Reserve, Inc. v. Superior Court (2016) _ Cal.App.5th _ , 2016 WL 7322451: The Court of Appeal affirmed the trial court’s decision, but for different reasons. The Department of Water Resources petitioned the trial court for orders authorizing it to enter onto various properties to conduct precondemnation studies and surveys. Before the trial court convened a hearing on the matter, the landowners requested to conduct discovery. While the trial court erred in holding the proceeding was exempt from discovery, the Court of Appeal found the landowners had not shown prejudicial error. The Court of Appeal also concluded the landowners’ contention regarding indispensable parties was moot as the trial court gave the landowners all the relief they sought. (C.A. 3rd, December 16, 2016.)
San Diegans for Open Government v. City of San Diego (2016) _ Cal.App.5th _ , 2016 WL 7131626: The Court of Appeal affirmed the trial court’s order denying plaintiffs’ petition for writ of mandate and entry of a judgment in defendants’ favor finding that plaintiffs were not entitled to an administrative appeal before the City Council after the City Planning Commission approved modified development plans through a substantial conformance review (SCR). Standard of review: De Novo. Under the California Environmental Quality Act, plaintiffs were not entitled to appeal the SCR decision to the City Council. (C.A. 4th, filed December 7, 2016, published December 16, 2016.)
Torts
Alereza v. Chicago Title Company (2016) _ Cal.App.5th _ , 2016 WL 6775982: see summary above under Real Property.
Gonzales v. City of Atwater (2016) _ Cal.App.5th _ , 2016 WL 7242559: The Court of Appeal reversed the trial court’s denial of a motion for judgment notwithstanding the verdict after plaintiffs obtained a jury verdict of $3.2 million in a wrongful death case against defendant City of Atwater (City) because the jury found an intersection was a dangerous condition under Government Code section 835. The Court of Appeal ruled that the design immunity defense under Government Code section 830.6 shielded the City from liability and reversed the judgment against the City. (C.A. 5th, December 15, 2016.)
Copyright © 2016 Monty A. McIntyre, Esq.
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