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My organized, succinct summaries of noteworthy new California civil cases will keep you current with new legal developments. I look forward to helping you resolve cases or issues as a mediator, arbitrator, referee or special master.
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Monty A. McIntyre, Esq. | ADR Services, Inc.
Mediator, Arbitrator, Referee & Special Master
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Areas: Business | Class Action | Construction | Employment | Insurance | Medical Malpractice | Professional Liability | Real Property | Torts
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CALIFORNIA COURTS OF APPEAL
Civil Procedure (Anti-SLAPP, Discovery, Mental Exams, Motion to Intervene, Motion to Vacate Default Judgment, Nonsuits)
Garibotti v. Hinkle (2015) _ Cal.App.4th _ , 2015 WL 9484138: The Court of Appeal reversed the trial court’s order granting defendant’s motion to vacate a default judgment. The Court of Appeal concluded that Code of Civil Procedure section 663a’s 60-day time frame for ruling on a motion to vacate a default judgment is mandatory and jurisdictional. Any order purporting to rule on the motion after the period lapses is beyond the court’s jurisdiction and void. (C.A. 4th, December 29, 2015.)
Hernandezcueva v. E. F. Brady Company, Inc. (2015) _ Cal.App.4th _ , 2015 WL 9304269: The Court of Appeal reversed the trial court’s order granting a nonsuit on a claim for strict products liability in a case alleging that asbestos-containing products distributed by defendant caused mesothelioma, but it affirmed the trial court’s order denying a motion for a new trial. The Court of Appeal concluded that the trial court erred in granting a nonsuit on the strict products liability claim because plaintiffs’ evidence showed, for purposes of the imposition of strict liability, that, when defendant acted as a subcontractor in the construction of a commercial building, it was in the stream of commerce relating to the asbestos-containing products. (C.A. 2nd, December 22, 2015.)
Lanz v. Goldstone (2015) _ Cal.App.4th _ , 2015 WL 9483761: The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion. Plaintiff (an attorney) sued defendant (an attorney) for malicious prosecution after plaintiff successfully defeated a cross-complaint filed by defendant in an action by plaintiff against his former client for fees, and after plaintiff successfully recovered a judgment against his former client. The plain language of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding. Regarding the second step of the anti-SLAPP analysis, the trial court properly ruled that plaintiff had established a probability that he would prevail on his claim for malicious prosecution. (C.A. 1st, December 29, 2015.)
Mitchell v. Superior Court (Johnson) (2015) _ Cal.App.4th _ : The Court of Appeal granted a writ petition vacating the trial court’s order granting a motion in limine by defendant to exclude three witnesses from testifying at trial because they were not identified in form interrogatory answers. The three witnesses did not witness the accident, but would testify to plaintiff’s physical limitations allegedly resulting from the accident including how plaintiff’s accident-related physical disabilities interfered with her care of her special-needs son, impacted the performance of her job as a grocery store worker, and caused problems in her activities of daily living. The Court of Appeal concluded that the trial court erred in excluding the witness testimony. It read interrogatory No. 12.1 to seek the identities of percipient witnesses, witnesses who were at the scene immediately before or after the accident, those privy to statements by percipient witnesses to an accident and those who might have personal knowledge of the accident itself. The Court of Appeal concluded that interrogatory 12.1 does not seek the identity of witnesses who may testify to the physical injuries or physical disabilities suffered by a plaintiff as a result of the accident. (C.A. 2nd, filed December 4, 2015, published December 22, 2015.)
Roe v. Superior Court (Hollister School District) (2015) _ Cal.App.4th _ , 2015 WL 9275407: The Court of Appeal granted, in part, a writ petition finding that the superior court had no authority to order interviews of the parents of a minor, collateral to the mental examination of the minor, who alleged he had been sexually molested by another kindergartener on two occasions. In granting the writ, the Court of Appeal found that the trial court had exceeded its authority under Code of Civil Procedure section 2032.020. (C.A. 6th, filed November 19, 2015, published December 18, 2015.)
Ziani Homeowners Association v. Brookfield Ziani LLC (2015) _ Cal.App.4th _ , 2015 WL 9311660: The Court of Appeal reversed the trial court’s order denying a motion to intervene by several condominium homeowners. The trial court concluded the motion to intervene was untimely because it was filed almost two years after the construction defect lawsuit was filed by the homeowners association. The Court of Appeal disagreed, ruling that the timeliness of a motion to intervene under Code of Civil Procedure section 387 should be determined based on the date the proposed interveners knew or should have known their interests in the litigation were not being adequately represented. (C.A. 4th, December 22, 2015.)
Civil Rights (Unruh Act)
Harrison v. City of Rancho Mirage (2015) _ Cal.App.4th _ , 2015 WL 9258957: The Court of Appeal affirmed the trial court’s ruling sustaining a demurrer, without leave to amend, to a complaint alleging that defendant violated the Unruh Civil Rights Act when it amended the municipal code that provided rules and regulations for renting private homes as short-term vacation rentals to, among other things, require that a person over the age of 30 sign a contract agreeing to be the responsible person for the rental and ensuring that all of the occupants follow the rules and regulations regarding vacation rentals. The trial court properly found that defendant was not acting as a business establishment. It was amending an already existing municipal code section to increase the minimum age of a responsible person from the age of 21 years to 30. Defendant was not directly discriminating against anyone and nothing in the plain language of the Unruh Act made its provisions applicable to the actions taken by the defendant. (C.A. 4th, filed December 18, 20915.)
Class Actions
Cruz v. Sun World International, LLC (2015) _ Cal.App.4th _ , 2015 WL 7429245: The Court of Appeal affirmed the trial court’s order denying class certification in an action alleging wage and hour, and meal and rest break violations. The Court of Appeal concluded that the trial court properly denied the motion for class certification. The trial court properly concluded that the farm labor contractor workers were not a sufficiently ascertainable group for class treatment, and they were not members of the proposed class because plaintiffs failed to establish they were joint employees of defendant. Limiting the proposed class to directly hired employees, the trial court properly concluded that common issues did not predominate over individual issues. (C.A. 5th, filed November 23, 2015, published December 22, 2015.)
Construction (Damages, Retention Payments)
JMR Construction Corp. v. Environmental Assessment and Remediation Management, Inc. (2015) _ Cal.App.4th _ : The Court of Appeal affirmed the judgment for plaintiff, but reversed (in the unpublished portion of the opinion) an award of expert fees to plaintiff under CCP 998. Plaintiff sued defendant and its surety company for breach of contract and for foreclosure of the performance bonds regarding a public works project in Monterey. After a court trial, plaintiff was awarded the net amount of $315,631, which included an offset for the retention funds plaintiff withheld under the subcontracts. The Court of Appeal concluded that the court did not err in its utilization of the Eichleay method (see Eichleay Corp. (A.S.B.C.A.1960) 60-2 BCA (CCH) 2688) to calculate extended home office overhead damages, and in its use of the modified total cost method of calculating plaintiff’s disruption and delay damages. The Court of Appeal also concluded that the trial court did not err in finding the bonding company was liable under the performance bonds, concluding that formal notice of defendant’s default was not a condition precedent to plaintiff’s recovery under the bonds. (C.A. 6th, December 30, 2015.)
United Riggers and Erectors, Inc. v. Coast Iron and Steel Co. (2015) _ Cal.App.4th _ , 2015 WL 9275033: The Court of Appeal reversed in part and affirmed in part the trial court’s judgment in favor of defendant contractor and against plaintiff subcontractor. After the work on a project was finished, plaintiff sent a demand to defendant to pay for change orders and for damages that plaintiff claimed defendant caused by mismanaging the project. Defendant refused to pay, and also delayed forwarding plaintiff’s share of retention payments defendant had received from the owner of the project. The Court of Appeal concluded that, pursuant to Civil Code section 8814 (c), a contractor is entitled to withhold a retention payment only when there is a good faith dispute regarding whether the subcontractor is entitled to the full amount of the retention payment, and reversed the judgment of the trial court as to this issue. The Court of Appeal also reversed the trial court’s award of attorney fees to defendant. On remand, the trial court was directed, pursuant to section 8818, to award plaintiff penalties and attorney fees for the delayed retention payment claim. The trial court’s judgment on the other issues was affirmed. (C.A. 2nd, filed November 23, 2015, published December 18, 2015.)
Employment
Cruz v. Sun World International, LLC (2015) _ Cal.App.4th _ , 2015 WL 7429245: See summary above under Class Actions.
Santa Monica College Faculty Association v. Santa Monica Community College District (2015) _ Cal.App.4th _ : The Court of Appeal reversed the trial court’s order granting defendant’s petition to vacate three arbitration awards that had been entered in favor of terminated part-time faculty members. The Court of Appeal concluded that defendant’s authority to revoke a part-time, temporary faculty member’s annual reappointment rights was governed by the terms of a collective bargaining agreement negotiated pursuant to Education Code section 87482.9, and not by Education Code section 87665. The arbitrator properly found in favor of the part-time faculty members, because there was an implied requirement in the collective bargaining agreement that defendant’s finding of misconduct have some evidentiary basis, and defendant’s refusal to present any evidence on this question dictated a ruling in favor of the part-time faculty members. (C.A. 2nd, December 30, 2015.)
Government (California Public Records Act)
Caldecott v. Superior Court (Newport-Mesa Unified School District) (2015) _ Cal.App.4th _ , 2015 WL 9283946: The Court of Appeal granted a writ petition challenging the trial court’s denial of a writ petition requesting a school district to produce records under the California Public Records Act (CPRA, Government Code section 6250 et seq.). The trial court denied the petition, ruling that, because petitioner already possessed the documents, his request was moot. Petitioner argued he wanted the documents produced under the CPRA so he could release the documents to the public without being subjected to claims of improperly disclosing confidential information. The Court of Appeal concluded that the public interest in disclosure of the documents outweighed any privacy interests and the CPRA required their production. The matter was remanded to the superior court to conduct an in camera review of the documents to determine if any are protected by the attorney-client privilege, to redact to delete the identities of and personal information about unrelated third parties, and to enter a new order for the school district to produce the nonprivileged or redacted documents. (C.A. 4th, filed December 9, 2015, published December 21, 2015.)
Insurance
Heckart v. A-1 Self Storage, Inc. (2015) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend. The trial court properly concluded that an addendum to a storage unit rental agreement, which modified the agreement’s allocation of liability for damage or loss to stored property, was not “insurance” subject to regulation under Article 16.3 of the Insurance Code concerning self-service storage agents. Because the addendum was dependent on the rental agreement, whose principal object was the rental of storage space, the storage facility that offered the addendum did not engage in the unlicensed sale of insurance. (C.A. 4th, December 30, 2015.)
Real Property (Construction Defects, Land Use)
Harrison v. City of Rancho Mirage (2015) _ Cal.App.4th _ , 2015 WL 9258957: See summary above under Civil Rights.
HPT IHG-2 Properties Trust v. City of Anaheim (2015) _ Cal.App.4th _ , 2015 WL 9283932: The Court of Appeal affirmed the trial court’s order granting a writ petition and setting aside a second conditional use permit (CUP) issued by defendants that was inconsistent with the requirement of the first CUP defendants had issued. The original CUP, CUP 4153, provided for defendants to build a two-level parking structure and set out other development requirements, including upgraded setbacks and landscape. After a planned overpass was constructed in the area, defendants issued a second CUP, CUP 5573, that allowed construction of a surface parking lot instead of a parking structure, and that also permitted setbacks and landscaping that did not conform to the earlier upgraded setbacks and landscape requirements. The Court of Appeal concluded that the trial court properly granted the petition to set aside CUP 5573 based upon the doctrine of equitable estoppel. (C.A. 4th, filed November 20, 2015, published December 21, 2015.)
Ziani Homeowners Association v. Brookfield Ziani LLC (2015) _ Cal.App.4th _ , 2015 WL 9311660: See summary above under Civil Procedure.
Torts (Assumption of Risk, Government Immunity, Molestation, Strict Liability)
Goddard v. Department of Fish and Wildlife (2015) _ Cal.App.4th _ , 2015 WL 9311683: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant Department of Fish and Wildlife (DFW) in a wrongful death action arising from plaintiff’s drowning in the Tuolumne River downstream from the remnant of what was once known as the Dennett Dam. The trial court properly granted summary judgment because DFW was immune from liability under section 831.2 because plaintiff’s death was caused by a natural condition, and DFW could not be liable under Government Code section 835 because it did not own or control the dam remnant. (C.A. 5th, December 23, 2015.)
Hernandezcueva v. E. F. Brady Company, Inc. (2015) _ Cal.App.4th _ , 2015 WL 9304269: See summary above under Civil Procedure.
Moore v. William Jessup University (2015) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s summary judgment for defendant. Plaintiff, a United Parcel Service (UPS) delivery driver, was injured when he lifted a box with a shipping label prepared by defendant that inaccurately stated the weight of the box. Although a defendant has no duty to protect a plaintiff from risks inherent in an activity, a defendant has a duty not to increase the risks. The evidence in this case established that the risk of injury from lifting heavy boxes that may be labeled with inaccurate weight information was inherent in plaintiff’s job as a UPS delivery driver. Although the primary assumption of risk doctrine does not require a plaintiff to assume every possible risk presented in an occupation, by mislabeling the package in this case, defendant did not increase the risks beyond those that were inherent in plaintiff’s job. Accordingly, the primary assumption of risk doctrine applied and barred plaintiff’s negligence action. (C.A. 3rd, December 28, 2015.)
Roe v. Superior Court (Hollister School District) (2015) _ Cal.App.4th _ , 2015 WL 9275407: See summary above under Civil Procedure.
See Ca. opinions at: http://www.courts.ca.gov/opinions.htm
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