Week in Review (March 26, 2018)

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Week of:                       March 19, 2018
Publication Date:        March 26, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • Brandon Lawrence v. Superior Court [Real Party in Interest] California Highway Patrol et alterius; where the court of appeals granted Mr. Lawrence’s petition for a writ of mandate, ordering that a car that was seized by the CHP on behalf of a Japanese citizen based on the alleged theft of the car in Japan, be returned to Mr. Lawrence immediately, as CHP is not seeking a criminal prosecution.
  • Ardella Fox et alterius v. Superior Court [Real Party in Interest] Metalclad Insulation LLC; where the court of appeals granted a writ directing the trial court to hold Ms. And Mr. Fox’s trial within 120 days pursuant to their motion for trial preference due to their advanced age and poor health. The appeals court noted that the trial court may have used the wrong standard to review the motion, as the code section has a mandatory and a discretionary provision, and may have incorrectly applied the higher standard of review under the discretionary provision to its consideration of the mandatory provision.
  • Matthew McGlynn et alterius v. State of California et alterius; where six elected judges’ appeal was denied by the appellate court, and the trial court’s determination was affirmed. Both courts held that the appellants were not entitled to the retirement benefits from the date of their election in 2012, but rather were subject to the California Public Employees’ Pension Reform Act of 2013, as they took office on January 07, 2013, six days after the provisions of the reform went into effect.
  • In re Christian K. a Person Coming Under the Juvenile Court Law [OR] Alameda County Social Services Agency v. Christian K.; where the court of appeals affirmed minor’s extended overseas trip in order to facilitate adoption to his grandmother, who lives in Denmark, over minor’s objections that he was entitled to receive additional therapeutic services that had not been provided.
  • The People v. Juan Pablo Mendez; where court of appeals reversed the trial court’s order extending his civil commitment as a mentally disordered offender, holding that the trial court erred in instructing a jury to consider the consequences of its verdict. The appeals court ordered a new trial be conducted on these grounds.
  • Norma Serrano v. Aerotek, Inc.; where the appeals court affirmed judgment entered in favor of Aerotek on a meal period employment issue, the court held that a temporary employment agency like Aerotek is not required to ‘police’ its clients in order to ensure that its own meal period policies are being enforced.

From the Second Appellate District –

  • James R. Austin v. John Michael Medicis et alterius; where the appeals court affirmed the dismissal of Mr. Austin’s complaint on demurrer for failure to file within the statute of limitations. As a matter of first impression, the court held that the statute that tolls the statute of limitation when a person is “imprisoned on a criminal charge” does not apply to individuals in pretrial custody.
  • Eleanor Licensing LLC et alterius v. Classic Recreations LLC et alterius; where the court of appeals partially reversed the trial court’s judgment in favor of Eleanor Licensing, holding that the breach of contract causes of action were past the statute of limitations and that the alter ego finding against the individual defendants was unsupported by the evidence; the court otherwise affirmed the trial court’s determination that Eleanor was entitled to retain possession of the car in dispute.
  • The People v. Starletta Partee; the court of appeals affirmed Ms. Partee’s conviction and sentencing on four felony counts of being an accessory after the fact and one misdemeanor count of contempt for refusing to testify, when, despite a grant of immunity, Ms. Partee refused to testify against four individuals charged with a gang-related murder.
  • Covina Residents for Responsible Development v. City of Covina [Real Party in Interest] City Ventures, Inc. et alterius; the appeals court affirmed the City’s ability to construct a 68 unit mixed use infill project located one quarter mile from a Metrolink commuter rail station. The Covina Residents opposed the project under the California Environmental Quality Act and the subdivision map act.
  • In re E.D. a Person Coming Under the Juvenile Court Law [OR] Los Angeles County Department of Children and Family Services v. Paul D.; where the court of appeals reversed the trial court’s order of dependency jurisdiction over minor child E.D. when there is insufficient evidence to show a substantial risk of serious physical injury as to E.D.’s father, Paul D. even though there was a prior restraining order for domestic violence, as Paul D. had completed a domestic violence batterer’s program, there were no concerns over relapse, and the DCFS social worker found Paul D. to be QUOTE “loving and nurturing to the child.”
  • Jonathan Arvizu v. City of Pasadena; where the court of appeals affirmed entry of judgment in favor of the City when Mr. Arvizu suffered extreme personal injuries after falling over a retaining wall on a public trail. The court upheld ‘trail immunity’ that prevents such suits against governments in order to encourage the development and availability of public hiking trails.

From the Third Appellate District –

  • The People v. Miguel Angel Cabrera; where the appeals court affirmed the trial court’s determination that Mr. Cabrera’s 2008 conviction were not subject to review by the trial court assigned to hear the Penal Code Section 1170.126 petition, and that even if the classifications of the crimes were incorrect, they would not constitute an unauthorized sentence.

From the Fourth Appellate District –

  • West Coast Air Conditioning Company, Inc. v. California Department of Corrections and Rehabilitation; where the court of appeals upheld the trial court’s award of $250,000 in bid preparation costs based on West Coast’s successfully establishing that it was the lowest cost bidder on a project, and that the bid from the company that was awarded the contract was illegal and nonresponsive as a matter of law.
  • The People v. Angelo Andrew Arredondo et alterius; where the appeals court affirmed in part and reversed in part on the basis of the prosecutor suggesting that the defendants here were part of a hidden group of QUOTE “Cockroaches” END-QUOTE that needed to be punished. Guilt by association for uncharged acts is not a proper argument.
  • Franklin Eng v. Michael Patrick Brown et alterius; in which the court of appeals affirmed judgment in favor of the defendants on a breach of fiduciary duty action between purported partners in a San Diego seafood restaurant, Tin Fish Gaslamp.
  • Karen Hayes v. Temecula Valley Unified School District; where the court of appeals upheld the denial of Ms. Hayes’ writ seeking reinstatement as a middle school principal. While Ms. Hayes argues that the trial court erred in analyzing the factual basis for her dismissal, the court of appeals found no basis in the trial court’s analysis for reversal.

From the Fifth Appellate District –

  • The People v. Turlock Hernan Diaz et alterius; the court of appeals affirmed the murder conviction of one defendants, Mr. Pantoja, in its entirety, and remanded Mr. Diaz’s conviction, sentencing enhancements, and sentence to the juvenile court for a transfer hearing – conditionally reversing the convictions upon the determination of transfer.

From the Sixth Appellate District –

  • Arthur Properties, II, LLC et alterius v. City of San Jose et alterius; where the court of appeals upheld the trial court’s review of an administrative proceeding. The City is allowed to shut down plaintiff’s medical marijuana dispensary as an unauthorized use of the property where the dispensary operates.

Appellate Decisions – In Depth Review

West Coast Air Conditioning Company, Inc. v. California Department of Corrections and Rehabilitation;

    While originally determined on February 22, 2018, the appeals court published this case on March 19, 2018. Here, Justices Benke, McConnell, and Irion upheld San Diego County Superior Court Judge Pressman’s entry of judgment in favor of West Coast Air Conditioning Company. In February 2015, the California Department of Corrections and Rehabilitation solicited bids for the installation of new air conditioning and re-roofing of Ironwood State Prison.  In May 2015 the Department of Corrections awarded the contract to Hensel Phelps Construction Co., and West Coast Air Conditioning immediately sought injunctive relief due to numerous alleged defects in Hensel Phelps’ bid.  Despite the litigation, the Department of Corrections had Hensel Phelps begin work, and several months later the court found that Hensel Phelps’ bid was unresponsive as a matter of law due to numerous admitted defects in its bid, and that the contract should have been awarded to West Coast Air Conditioning.

    The Department of Corrections refused to obey the court’s order to award the contract to West Coast Air Conditioning, and continued to use Hensel Phelps for the project – in a subsequent hearing the court agreed that it could not order that the Department of Corrections use West Coast as its contractor, but the court did ultimately issue a permanent injunction against the Department’s use of Hensel Phelps, as well as award damages to West Coast in the amount of $250,000 for bid preparation costs.  The Department of Corrections appealed the award, arguing that under the 2000 case Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority, West Coast Air Conditioning’s relief was limited to a permanent injunction against the Department of Corrections use of Hensel Phelps on this project, which West Coast achieved.  The appeals court distinguished the Kajima case by noting that in Kajima, full relief was possible there by awarding the contract to Kajima, whereas here, the Department will have to solicit new bids to complete the project, rendering the same relief impossible for West Coast.  Therefore, the award of West Coast’s bid preparation costs was appropriate when it could not be adequately compensated by the permanent injunction alone.

Brandon Lawrence v. Superior Court [Real Party in Interest] California Highway Patrol et alterius

    On March 20, 2018, Justices Dondero, Humes, and Banke issued a peremptory writ of mandate ordering that the superior court vacate its September 29, 2017, order and instead turn over possession of a 1947 Cisitalia automobile to Mr. Lawrence rather than having it remain in the possession of the California Highway Patrol. This case begins in September 2015 when Mr. Kiyoshi Takihana allegedly used the same 1947 Cisitalia as collateral to finance a business from a Japanese construction company Ohtomi Kensetsu Kabushiki Kaisha, despite transporting the car to company, Mr. Takihana allegedly did not receive the promised loan, and did not have his car returned.  The Cisitalia then made its was into the hands of Mr. Lawrence, who purchased the car from the Japanese company, shipped it to California, and oversaw the car’s restoration.

    Mr. Takihana thereafter filed a stolen car report with the California Highway Patrol in late 2016 to early 2017, the California Highway Patrol found and seized the Cisitalia from Mr. Lawrence in March 2017 based on this report, and in the instant action the trial court ordered that the car should remain in the possession of the California Highway Patrol until a hearing could be held to determine the lawful owner of the Cisitalia.  On review of the trial court’s order, the appeals court relied on the 1998 case Ensoniq Corporation v. Superior Court, where, absent criminal charges against the possessor of purportedly stolen property, the agency holding the property must either return the property to the possession of the person from whom it was taken by the agency or else establish by a preponderance of the evidence that the property is indeed stolen.  Here, because the California Highway Patrol did not seek criminal charges and offered no evidence in the hearing for this order, the car should have been returned to Mr. Lawrence.  The issue of the true owner of the car will be left to a separate proceeding.

James R. Austin v. John Michael Medicis et alterius

    On March 21, 2018, Justices Lavin, Edmon, and Currey affirmed Los Angles Superior Court Judge Kwan’s entry of judgment in favor of defendants on the grounds that Mr. Austin’s legal malpractice claim against defendants is barred by the statute of limitations. The relevant facts of this case begin in 2009 when Mr. Austin engaged defendants to represent him on allegations that he had sexually assaulted his 14-year-old stepdaughter.  At some point during the proceedings the defendants abandoned Mr. Austin while retaining the legal fees already paid, although they made an effort to return a portion of the legal fees that was ultimately rejected.  Austin was subsequently convicted, remanded to state custody, and an appeal was denied in September 2013.

    Mr. Austin filed the instant action that same month, and argues that the one-year statute of limitations for legal malpractice should be tolled under Civil Code Section 340.6, because he was imprisoned on a criminal charge at the time the action accrued, and therefore was restricted from commencing the action.  The appeals court’s analysis considers the definition of the term ‘imprisoned’ delves into the concept of ‘civil death’, which has its root in ancient Greece.  From there the court brings its analysis to present day in California where criminals are able to pursue litigation even within the confines of the state prison system.  Under the circumstances presented in California today, the time limit on all of Mr. Austin’s causes of action began running on September 22, 2009 and October 09, 2009, and ran out in 2010 and 2012 respectively, making his 2013 action untimely for all purposes.

Supreme Court – Roundup

This Week, the Supreme Court published two cases, including:

  • The Regents of the University of California et alterius v. The Superior Court of Los Angeles County [Real Party in Interest] Katherine Rosen; where the Supreme Court reversed the court of appeals’ finding that UCLA had no duty to protect a student from another student. The Supreme Court determined that when the school is on notice of foreseeable violence during curricular activities, then it owes a duty to protect to protect its students.  However, the court remanded the case for further proceedings on whether judgment should nevertheless be entered in favor of UCLA on the grounds of whether it breached this duty, or whether it is immune from liability on other grounds.
  • Newport Harbor Ventures, LLC et alterius v. Morris Cerullo World Evangelism et alterius; where the Supreme Court held that because Anti-SLAPP is designed to resolve unmeritorious suits early, hearing a special motion to strike after the 60-day statutory deadline may be denied within the discretion of the trial court.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that one case was accepted during the week of March 19, 2018, specifically:

  • Lawson v. Z.B., N.A.; where the supreme court granted review in order to answer the question of whether a representative action under the Private Attorneys General Act who is seeking individualized lost wages as civil penalties fall within the preemptive scope of the Federal Arbitration Act?

Week in Review (March 19, 2018)

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Week of:                       March 12, 2018
Publication Date:        March 19, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • The People v. Beatrice Aguirre; where the court of appeals affirmed the trial court’s refusal to resentence Ms. Aguirre on felony forgery charges when Ms. Aguirre advanced the argument that each $100 bill should be treated as a separate ‘count’ of forgery; the court noted that the largest printed denomination in the United States is the $100 bill, and Proposition 47 was not intended to eliminate felony forgery.

From the Second Appellate District –

  • The People v. Kevin Mireles; the court of appeals affirmed the second degree robbery conviction of Mr. Mireles for placing a $4.47 Universal Product Code sticker on a bottle of Home Depot weed killer that is priced at $39.98 and using force to try to escape a security guard. The Court held that the crime was not one of theft by false pretenses under the 2013 People v. Williams, as Home Depot never consented to the transaction.
  • Gevel Saheli v. White Memorial Medical Center, et alterius; where the appeals court reversed the trial court’s partial denial of a motion to compel arbitration; the appeals court held that the procedural requirements of the Ralph Act and Bane Act were pre-empted by the Federal Arbitration Act under the factual circumstances of this case.
  • In The People v. Christian Almanza; the appeals court considered whether to remand Mr. Almanza’s case to the trial court based on the recently enacted Senate Bill 620, which grants court’s discretion to strike enhancements; it held that there was no rational basis to do so when the trial court sentenced Mr. Almanza to 137 years based on consecutive sentences for his third-strike, First Degree Murder conviction, striking the enhancements would only reduce the sentence to 112 years, and the court issued consecutive rather than concurrent sentences for his crimes.
  • Quanta Computer Inc. v. Japan Communications Inc.; where the appeals court affirmed dismissal on the grounds of forum non conveniens as to the dispute between a Taiwanese Company and a Japanese Company, whose sole relationship with California was that the sale contract between the parties specified that any dispute was to be resolved in a California Court under California law.

From the Third Appellate District –

  • Heriberto Ponce et alterius v. Wells Fargo Bank et alterius; where the court of appeals reversed the trial court’s granting of terminating sanctions in a mortgage foreclosure case where the plaintiffs could make a non-frivolous argument that Wells Fargo was not a predecessor in interest to a prior settlement agreement.
  • The People v. Derek Antonio Johnson; where the appeals court held that the trail court’s failure to hold a mental competency hearing violated Mr. Johnson’s due process rights when there was substantial evidence to doubt his mental competence in the form of engaging in multiple acts of self-mutilation, shouting at voices in his head, being unable to quiet himself during court proceedings, defecating in his pants, and being placed in the prison’s medical unit, given medication, and placed on suicide watch.
  • The People v. Kim E. Jordan; where the court of appeals affirmed the trial court’s imposition of penalty assessments for criminal laboratory analysis and drug program fees, and held that by failing to raise these issues in a prior appeal, Mr. Jordan waived his appeal on these issues.

From the Fourth Appellate District –

  • MMM Holdings, Inc. v. Marc Reich; where the appellate court affirmed entry of judgment in favor of Mr. Reich on an Anti-SLAPP motion, where the plaintiffs brought a suit against Mr. Reich based on his use of certain purportedly stolen documents in pursuing litigation against plaintiffs as an attorney representing an opposing party in a prior action.
  • AO Alpha-Bank v. Oleg Nikoleavich Yarkovlev; where the court of appeals reversed the trial court’s entry of judgment in favor of Mr. Yarkovlez; it found that Alpha Bank’s foreign judgment from a Russian court was enforceable even if Mr. Yarkovlez did not receive actual notice so long as the notice sent was reasonable calculated to impart actual notice. Here notice was sent by registered mail to the address in the surety agreement between the parties.
  • In re the Marriage of Donald Pearson and Tonya Pearson; the court of appeals affirmed in part, on the trial court’s determination that the term ‘bonus’ was susceptible to interpretation, and that in only referred to Mr. Pearson’s performance-based cash bonus in the marital settlement agreement and in awarding Mr. Pearson $50,000 in sanctions against Ms. Pearson; but reversed on the court’s determination of Ms. Pearson’s ability to work, finding that there was not substantial evidence to support the court’s determination.
  • Edward Davidson v. Seterus Inc. et alterius; where the appeals court reversed the trial court’s determination that defendant was not a debt collector under the Rosenthal Act, when the law is ambiguous as to whether the act applies to mortgage collectors, and California law requires that statutes for the protection of the general public are broadly construed to protect the public when there is any ambiguity.
  • Don’t Cell Our Parks v. City of San Diego [Real Party in Interest] Verizon Wireless; where the court of appeals affirmed judgment in favor of defendants, holding that the City had discretion to allow Verizon to construct a wireless telecommunications facility in a park without two-thirds vote by San Diego residents, and that the project fell within the small facility exemption under CEQA.
  • Petrolink, Inc. v. Lantel Enterprises; where the court of appeals modified the entry of judgment in favor of Petrolink on the specific performance of a real estate purchase, finding that Petrolink is entitled to an offset of all rents paid after the option to purchase was validly exercised in order to place the parties in the position they would have been had the contract been fully performed.
  • George Corley v. San Bernardino County Fire Protection District; where the appeals court affirmed entry of judgment in favor of Mr. Corley on an age discrimination claim, where a jury found that Mr. Corley’s age was a substantial motivating reason for the District’s termination of his employment; the court held there was no reversible error in the jury instructions.

From the Fifth Appellate District –

  • Big Oak Flat-Groveland Unified School Disctrict et alteruis Superior Court [Real Party in Interest] Jane Doe; where the court granted the school district’s petition for a writ of mandate, holding that Jane Doe’s failure to timely comply with the school district’s claim presentation requirements meant that she could not present a claim for childhood sexual abuse.

Finally, From the Sixth Appellate District –

We have no cases this week.

Appellate Decisions – In Depth Review

The People v. Kevin Mireles

    Justices Johnson and Rothschild affirmed the judgment entered against Mr. Mireles by Los Angeles County Superior Court Judge Kim. The case is based upon Mr. Mireles walking into Home Depot, placing a UPC sticker that scanned for $4.47 on a bottle of weed killer that sells for $39.98, and trying to leave the store after pretending to purchase the item as the self-checkout line.  When Mr. Mireles attempted to leave the store, he was confronted by store security, and Mr. Mireles swung a closed fist at the security officer before being restrained until the police could arrive.  Mireles was convicted of robbery, which requires that the jury make a determination that ‘force, fear, or intimidation’ were used during the course of the theft.  On appeal, Mr. Mireles argued that the most he should have been convicted of was a theft by false pretenses, but the court held that the key conduct for differentiating a crime of false pretenses from a crime of larceny occurs at the time of the taking – here, Mr. Mireles never received consent to purchase the item from the store for the wrong amount, and therefore the crime constituted one of larceny.

    In a separate concurring and dissenting opinion, Justice Chaney argued that the majority’s analysis was flawed as to the differences between theft by larceny or by false pretense.  Specifically, Justice Chaney argued that the majority ignored that between Mr. Mireles taking the weed killer off the shelf and being apprehended, Mr. Mireles engaged in a transaction with Home Depot for the purchase of the weed killer, and it was that transaction that ultimately defined the crime, as his pretending to pay for the weed killer is where the crime occurred.

Gevel Saheli v. White Memorial Medical Center, et alterius

    Justices Bigelow and Hall reversed Los Angeles County Superior Court Judge Hammock decision to deny arbitration as to two causes of action under the Ralph Act and the Bane Act, which are causes of action based on alleged hate crimes. Under the court of appeals’ analysis of the arbitration agreement, it found that the trial court erred when it incorporated state law provisions under the Ralph and Bane Acts that make arbitration agreements unenforceable ab initio, or else require a knowing and voluntary waiver of rights under the relevant act to be proved by the party attempting to enforce arbitration.  Under the appeals court’s pre-emption analysis under the Federal Arbitration Act and U.S. Supreme Court precedent, the court ultimately reasoned that claims under the Ralph and Bane acts were fundamentally different from Private Attorney General Actions, and thus could not avoid preemption – rendering the arbitration agreement enforceable as to those two causes of action.

    In a concurring opinion, Justice Rubin stated that while he agreed with this result as the correct result under the compulsion of U.S. Supreme Court precedent, he fundamentally disagreed with the continuing trend towards compelling more and more cases into arbitration.  Specifically, Justice Ruben note that “Our opinion today facilitates the elimination through arbitration clauses of civil trials for Bane Act and Ralph Act violations without regard to whether the conduct is grievously violent or much less so,”  and argued that the California Legislature should be within its power to determine that arbitration of hate crimes is unconscionable, against public policy and unenforceable.

Supreme Court – Roundup

This Week, the Supreme Court published two cases, including:

  • In re Vincente Benavides Figueroa; in a habeus corpus petition for a conviction and death sentence previously confirmed by the Court for the rape and murder of Consuelo Verdugo in 1991, the Court vacated the judgment in its entirety on the basis of the State’s concession that that false evidence was introduced at trial regarding the alleged rape. While the State argued for a reduction from First Degree Murder to Second Degree Murder, the court considered such a reduction to require it to posit a radically different trial than the one that petitioner received, and was therefore required to vacate the judgment.
  • The People v. Veronica Lorraine DeHoyos et alterius; in this case the court addressed a procedural issue related to Proposition 47, determining that defendants who were serving felony sentences on the measure’s effective date but whose judgments were on appeal and thus not yet final are required to follow the statutory resentencing procedures, including the risk assessment, prescribed by Penal Code Section 1170.18.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that six cases were accepted during the week of March 12, 2018, including:

  • Wishnev v. Northwestern Mutual Life Ins. Co.; where the Ninth Circuit asks about the interaction of the California Constitution and California Code related to lenders.
  • People v. Bueno; where the question of the propriety of lab fees will be considered when the conviction is based on conspiracy to commit drug-related crimes.
  • People v. Martinez-Carreon; asks about the liability for aiders and abiders in a premeditated murder case in light of new guidance from the US and State Supreme Courts.
  • People v. McCurdy; will seek to address another Proposition 47 issue related to what happens when sentencing enhancement becomes a misdemeanor.
  • People v. Shaw; will answer the question of a pair of pliers constitutes ‘burglary tool’ under Penal Code Section 466.
  • Finally, in People v. Tabron; the Supreme Court will too to answer the question of whether a trial court’s failure to instruct certain elements of murder are harmless error when the jury found a felony murder special circumstance.

Week in Review (March 12, 2018)

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Week of:                       March 05, 2018
Publication Date:        March 12, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • Christine Dean et alterius v. Friends of Pine Meadow et alterius, where the court affirmed judgment on the basis of defendants’ Anti-SLAPP motion, when the litigation was based on allegedly false statements made by Friends of Pine Meadow and other individual defendants about their plans to construct a housing development on the Pine Meadow Golf Course in the city of Martinez.
  • The People v. Damari Matthews; where the court remanded the case to the trial court to reconsider Mr. Matthews’ sentencing in light of S.B. 620, which grants discretion to the trial court regarding firearm enhancements to sentencing. Matthews was sentenced to 13 years in prison following his conviction of robbery, which occurred with the use of a firearm.

From the Second Appellate District –

  • Michael Chaney v. Leanne Netterstrom; where Mr. Chaney attempted to quash Ms. Netterstrom’s petition for marriage dissolution on the grounds that their failure to properly file their marriage certificate with the County invalidated the marriage – both the trial court and the appeals court disagreed, and held that there existed a valid marriage once they secured the license and exchanged vows at a solemnization ceremony.
  • Klean W. Hollywood, LLC v. Superior Court [Real Party in Interest] Langston Jackson; where the appeals court held that Mr. Jackson could not pursue a negligence claim against a drug treatment center on the theory that they should have prevented him from surreptitiously obtaining heroin and shooting up in his room at the facility.
  • The People v. Si H. Liu; where the court held that in Ms. Liu’s conviction on 22 theft-related counts in 2013, two counts qualified for resentencing under Proposition 47 because they constituted thefts of less than $950.

From the Third Appellate District –

  • Maryjane Selvidge et alterius v. Sullyvan W. Tang; where the appeals court in Sacramento ruled that mailing an intent to file a medical malpractice action to the physical mailing address on record with the Medical Board of California provides adequate notice under the Medical Injury Compensation Reform Act.
  • GMRI, Inc. v. California Department of Tax and Fee Administration; where the court upheld the determination that the 15 to 18 percent gratuity that restaurant managers automatically added to large party bills, to be part of the company’s taxable gross receipts when the amount is not modified by the customer.

From the Fourth Appellate District –

  • County of San Diego v. Workers’ Compensation Appeals Board and Kyle Pike; the court annulled the worker’s compensation board’s order affirming Mr. Pike’s temporary diability payments, when those payments come more than five years after the alleged injury – as the plain language of Labor Code section 4656 expressly precludes payments after five years.
  • In re Christopher Lee White; the court upheld the trial court’s denial of bail under the California Constitution when the charges against Mr. White included attempted kidnapping with intent to commit rape, assault with intent to commit rape, contact with a minor with intent to commit a sexual offense, and false imprisonment.
  • David Doyle v. Fireman’s Fund Insurance Company; where the court agreed with the insurance company that Mr. Doyle’s discovery that millions of dollars of purchased wine turned out to be counterfeit wine did not constitute a property damage claim under his insurance policy.
  • The People v. D.P., a person coming under the juvenile court law; the court agreed with the people on a procedural issue, where the court held that a petition under Penal code Section 602, which directed the petition be filed within five days, was not mandatory, and so the petition being filed after 39 days was appropriate.

From the Fifth Appellate District –

We have no cases this week from the Fifth Appellate District.

From the Sixth Appellate District –

  • Edward Munro v. Department of Motor Vehicles; where the court held that under the vehicle code, an arresting office is required to at least attempt to inform a suspected drunken driver that his failure to submit to a chemical test would result in a one-year suspension, even when Mr. Munro was acting highly disruptive.

Finally,

This week an opinion was published by the appellate division of the Los Angeles Superior Court.

  • In The People v. Pamela Monk, the Appellate Division reversed the ruling of the Metropolitan Trial Court which found Ms. Monk guilty of starting to cross a roadway after the “DON’T WALK” sign began flashing. The determination and the $25 fine (and penalty assessments) were reversed pursuant to a change in Vehicle Code Section 21456, decriminalizing the relevant conduct.

Appellate Decisions – In Depth Review

Klean W. Hollywood, LLC v. Superior Court [Real Party in Interest] Langston Jackson

    On Thursday March 08, 2018, Justices Manella, Epstein, and Willhite granted Klean W. Hollywood’s petition for a writ overturning Los Angeles Superior Court Judge Rosenburg’s denial of summary judgment. Klean is a voluntary drug addiction treatment facility that Mr. Jackson entered on February 25, 2013, in order to receive help for drug addiction.  Sometime before March 15, 2013, Mr. Jackson told his roommate that he wanted to get high, and his roommate arranged to have a drug dealer deliver drugs to the facility – it was delivered to Mr. Jackson’s second-story room by Mr. Jackson tying his shoelaces into a plastic bag and lowering the bag from his window.  The two men injected drugs until late into the night, until they passed out, only to be revived the following morning.

    Jackson sued Klein for negligence on the theory that Klein should have had alarms on the windows of the residential units, security cameras monitoring publicly accessible areas, and allowing the residents to retain their cell phones.  Klein moved for summary judgment on the basis that the claim arose from Mr. Jackson’s own misconduct, and could not recover based on his own voluntary use of drugs.  The court considered the issues under the Drug Dealer Liability Act, holding that the Act was not intended to displace common-law tort liability for non-drug dealers; and under caselaw related to third-party responsibility related to intoxication.  Specifically, the court analyzed these circumstances under the similar responsibilities for business owners to refrain from furnishing drugs or alcohol, and to take reasonable measures to prevent such activities on their premises.

    On the record here, the court determined that Klein took such reasonable steps, as a matter of law, when Mr. Jackson was searched on arrival, his room was searched periodically, and he was encouraged to engage in therapy and wholesome activities.  The court held that for an unlocked, voluntary, and non-medical substance abuse treatment facility, measures such as 24hour supervision, or the type of surveillance argued-for by Mr. Jackson would constitute extraordinary measures that would ultimately discourage it and similar facilities from undertaking the treatment of users who need such treatment.

Christine Dean et alterius v. Friends of Pine Meadow et alterius

    Also on Thursday, March 08, 2018, Justices Ruvolo, Reardon, and Streeter affirmed Contra Costa Superior Court Judge Craddick’s entry of judgment in favor of Friends of Pine Meadows, based on their special motion to strike Plaintiffs’ complaint as a strategic lawsuit against public participation. In April 2016, the owners of the Pine Meadows Golf Course sold their property to Plaintiffs, who intended to create a 99-unit subdivision on the property.  Defendants opposed the project by gathering signatures, submitting public comments, and making allegedly false and misleading statements in the course of doing so.

    Both the trial court and the appeals court rejected Plaintiffs’ narrow interpretation of the First Amendment and what constitutes a ‘public issue.’  Instead, both courts noted that “the plaintiffs’ complaint is a paradigm of the problem that section 425.16 was designed to address.  The typical SLAPP lawsuit involves citizens opposed to a particular real estate development.  The group opposed to the project, usually a local neighborhood, protests by distributing flyers, writing letters to local newspapers, and speaking at planning commission or city council meetings.  The developer responds by filing a SLAPP suit against the citizen group alleging defamation or various business torts.  SLAPP plaintiffs do not intend to win their suits; rather they are filed solely for delay and distraction, and to punish activists by imposing litigation costs on them for exercising their constitutional right to speak and petition the government for redress of grievances.”  Plaintiffs’ additional arguments that the Defendants were engaged in commercial speech, or that they have a probability of success based on the sham exception in the Noerr-Pennington doctrine were equally rejected as the only evidence in the record indicates that Defendants were engaged in genuine petitioning activities to amend the general plan amendment permitting the Plaintiffs’ proposed development.  Accordingly, the entry of judgment in favor of defendants was affirmed.

GMRI, Inc. v. California Department of Tax and Fee Administration

    On Friday, March 09, 2018, Justices Hoch, Hull, and Murray affirmed judgment in favor of the California Department of Tax and Fee administration, which was decided on the basis of stipulated facts and statutory interpretation by Sacramento Superior Court Judge Cadei. The sole issue in the case was whether the 15 or 18 percent gratuity added by restaurant managers on large parties constituted a “mandatory payment designated as a tip, gratuity, or service charge under California Code of Regulations, title 18, section 1603, subdivision (g), and therefore part of the Company’s taxable gross receipts.”  The court affirmed the trial court and the State Board of Equalization’s determination that such gratuities were taxable as gross receipts in one circumstance – when the customer pays the gratuity without any modification.  On review, the court of appeals held that the plain language of the regulation includes the exact circumstances alleged here, and that when it is the restaurant that adds the gratuity, and the customer does not modify that gratuity, the regulation specifically provides that it is mandatory.  Additionally, the court concluded that when the gratuity is added into the bill by the restaurant, it becomes a payment for services that are part of the sale – even though the customer may decide to pay more or less than that amount, and the restaurant may choose to accept such modification.

Supreme Court – Roundup

This Week, the Supreme Court published several cases, including

  • Heller Ehrman LLP v. Davis Wright Tremaine LLP and Related Cases; addressed a question posed by the Ninth Circuit Court of Appeals, asking for the Supreme Court’s opinion on the dissolution of law partnerships. Specifically, the Court held that when a law partnership dissolves, the partnership does not have a property interest in the former partners’ work on hourly fee matters pending at the time of the firm’s dissolution.
  • The People v. Todd Jesse Garton; was an automatic death penalty appeal, the sentence of which was affirmed by the Supreme Court for Mr. Garton’s murder of his wife and unborn child with special circumstances. The conviction for conspiracy to murder his co-defendant’s husband, however, was reversed on the grounds that the trial court erred in instructing the jury on the elements required for a conviction on conspiracy.
  • Hector Alvarado v. Dart Container Corporation of California; where the Supreme Court ruled that an employee’s overtime pay rate, when there is a flat sum bonus during a single pay period, should be calculated by dividing the pay by the number of nonovertime hours the employee worked during the pay period.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that no cases were accepted during the week of March 05, 2018.

Week in Review (March 05, 2018)

Listen to the Podcast

Week of:                      February 26, 2018
Publication Date:        March 05, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • City of South San Francisco v. Workers’ Compensation Appeals Board and the City of Pacifica where the court affirmed the 100% responsibility determination of an arbiter against the City of South San Francisco in a dispute between South San Francisco and Pacifica as to who should pay the workers’ compensation claim for a firefighter who worked for both cities and developed cancer related to his work.
  • Victaulic Company v. American Home Insurance Company; where the appeals court held that there was prejudicial error at trial when the trial court allowed the admittance of Requests for Admissions responses, directly questioned a key witness, and mishandled the same witness’ invocation of her Fifth Amendment privilege in front of the jury.
  • Mark Brown v. California Unemployment Insurance Appeals Board, in this case the sole issue was whether Mr. Brown should be provided unemployment benefits at the statutory rate of 7% or at a contract rate of 10% after he had been improperly denied benefits following termination. The court of appeal held that the correct rate was 10% because the benefits were sufficiently tied to Mr. Brown’s employment contract to justify the 10% contract rate.
  • Norman Herterich v. Arndt Peltner, where the court of appeal held that Mr. Herterich’s claims on his father’s estate in this litigation were entirely barred by the litigation privilege, as they were entirely based on the statements made by Defendants during a prior litigation.
  • Medical Board of California v. The Superior Court real party in interest Alfred E. Adams, M.D., where the appeals court issued a peremptory writ of mandate commanding the superior court to vacate its order setting aside the Medical Board’s order revoking Mr. Adams’ medical license for prescribing controlled substances to himself. The appeals court held that the trial court’s order, based on the Board’s failure to produce ‘return receipts’, was incorrect, and all that the Board was required to show was that it sent its accusation against Mr. Adams by certified mail.

From the Second Appellate District –

  • Bel Air Internet, LLC v. Albert Morales saw the court of appeal reverse the trial court’s denial of the Defendants’ Anti-SLAPP motion, the court reasoned that movants could rely on the allegations in the complaint even if they deny engaging in the protected conduct.
  • Wayne Redfearn v. Trader Joe’s Company, where the appeals court reversed the trial court sustaining Trader Joe’s demurrer to the First Amended Complaint without leave to amend, and holding that Trader Joe’s could be considered a ‘stranger to a contract’ even though the contract itself referred to and required performance by Trader Joes.
  • Randall Pittman v. Beck Park Apartments, Limited the appeals court upheld the trial court’s determination to deny Mr. Pittman’s motion to vacate a 2010 order declaring him a vexatious litigant.
  • Arash Khorsand v. Liberty Mutual Fire Insurance Company, where in the published portion of the decision, the court of appeal held that the trial court erred in admitting part of an appraiser’s declaration regarding the arbitration award. However, the trial court’s affirmation of the arbitration award was itself affirmed despite the evidentiary error.
  • Inversiones Papaluchi SAS v. Superior Court which reversed the trial court’s order denying a motion to quash service to a Columbian cross-defendant, reasoning that the service of the cross-complaint was past the three-year statutory period, and that it failed to comply with the Hague Service Convention.
  • Luz Delgadillo v. Television Center, Inc., where the court of appeal affirmed the entry of summary judgment against Ms. Delgadillo for an action based on her decedent spouse falling to his death window-washing pursuant to Privette v. Superior Court, as Television Center did not control the means or methods of Decedent’s window-washing activities.
  • Travis Sakai v. Massco Investments, LLC, where the appeals court affirmed summary judgment in favor of Massco Investments, as it was unforeseeable as a matter of law that Mr. Sakai would be struck and then dragged by a vehicle exiting Massco’s parking lot.
  • California DUI Lawyers Association v. California Department of Motor Vehicles, where the court reversed the entry of judgment by finding that the DUI Lawyers Association has standing as taxpayers when they allege that the DMV is wasting taxpayer resources by maintaining a hearing system that violates driver’s procedural due process rights.
  • DD Hair Lounge, LLC v. State Farm General Insurance Company, the appeals court affirmed the trial court’s entry of judgment in favor of State Farm, even though the issue being litigated involved the retroactive effect of a 2016 amendment of existing law in favor of DD Hair Lounge, when the plaintiff concealed and misrepresented the existence of a certificate of LLC cancellation that would have extinguished the litigation in 2014 had DD Hair Lounge been forthcoming.

From the Third Appellate District –

  • Cal Fire Local 2881 v. Public Employment Relations Board where the court upheld the Public Employment Relations Board and trial court’s determination that there was no basis in law for rescinding new regulations based on a provision in the Drills Act because a state agency acting as a regulator did not need to follow rules set for an agency acting as an employer.
  • Courtney E. Rybolt v. James E., Riley IV the court affirmed the trial court’s five-year extension of a domestic violence restraining order and the modification of a parenting plan to prohibit Mr. Riley’s attendance of their minor child’s extracurricular activities during Ms. Rybolt’s parenting time.
  • In Northern California Water Association v. State Water Resources Control Board, the court of appeals reversed the trial court’s judgment in favor off Plaintiffs when the appeals court found that the ‘central premise’ of the trial court’s statement of decision failed to recognize the role that general fund money played in the proportional allocation of certain water fees, rendering the fees proportionate to the benefits derived by them.

From the Fourth Appellate District –

  • In Re M.A. et alterius, where the appeals court partially reversed the trial court’s custody order, holding that the determination of minor’s biological father as a ‘third parent’ under the Nineteen-Ninety-Two case Kelsey S. was incorrect based on collateral estoppel.
  • Alex Avila v. Southern California Specialty Care, Inc. where the court of appeal affirmed the trial court’s decision to deny arbitration on the basis of a decedent’s heir’s wrongful death claim generating the possibility of multiple inconsistent judgments under Code of Civil Procedure Section 1281.2, subsection “c”.
  • Evan Weiss v. The People, ex relatione Department of Transportation, where the court reversed and remanded judgment in favor of Defendants regarding the construction of a freeway sound wall based on eminent domain when the action should have been analyzed under inverse condemnation law.
  • W.P. v. The Superior Court, where the court of appeal reversed termination of mother’s reunification services based on the trial court’s erroneous interpretation of Welf. And Inst. Code Section 361.5, which would have limited mother’s twelve months to six when a different sibling group is at issue in the proceedings.
  • In re the Marriage of Janice R. and Robert J. Cassinelli, the court of appeals partially reversed and remanded the trial court’s order, and held that the trial court needed to consider the relevant factors under the Family Code before Wife could continue to receive unmodified spousal support payments. This determination was reached based on federal law regarding veteran’s disability and combat-related special compensation, which prohibited the trial court from compensating wife for the loss of regular military retirement payments.

From the Fifth Appellate District –

  • Agustin Leyva v. Abel Garcia, the appeals court affirmed the entry of summary judgment against the Plaintiffs because Mr. Garcia’s presentation of undisputed expert testimony that he did not cause a fire that injured Plaintiffs was sufficient for judgment to be rendered.

From the Sixth Appellate District –

  • Is Aptos Residents Association v. County of Santa Cruz, where the appeals court upheld a determination that the County’s installation of microcell transmitters on utility poles complied with the California Environmental Quality Act.

Appellate Decisions – In Depth Review

Victaulic Company v. American Home Insurance Company et alterius

    On Monday, February 26th, Justices Richman, Stewart, and Miller reversed the entry of judgment from Alameda County Superior Court Judge Roesch based on what the justices concluded was several prejudicial errors at trial.  While the case itself arises from a bad faith insurance defense claim by Victaulic against its insurers, the conduct resulting in the reversal of judgment revolves around one witness, Nancy Finberg, who was the claims examiner for most of Victaulic’s claims, and who verified the insurer’s Requests for Admission.

    At trial the court permitted Victaulic to introduce the insurers’ responses to requests for admission, and question Ms. Finberg about them in the proceedings.  When there was an apparent difference between the facts represented by Ms. Finberg and the Requests for Admission, Ms. Finberg appeared with personal counsel and ultimately was required to assert her Fifth Amendment privilege in front of the jury – this conduct was argued at length in both the closing statements and the damages phase of the trial, resulting in tens of millions of dollars in liability to defendant insurers.

    On appeal, the court held that under the 2015 case Gonsalves v. Li (2015) 232 Cal.App.4th 1406, Requests for Admission are not properly admitted at trial because they represent legal contentions more than factual assertions, and asking legal contention questions during live examinations is not proper under the 1994 case Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255.  Next, the appellate court found that the trial court’s direct questioning of Ms. Finberg in front of the jury was hostile, and that a curative instruction was not possible based on the appellate court’s reading of the record.  Finally, the court held that permitting Ms. Finberg to claim blanket privilege in front of the jury was improper under the 1984 Case Warford v. Mederiros (1984) 160 Cal.App.3d 1035, where it was held that “the trial court must undertake a particularized inquiry with respect to each specific claim of privilege,” and under the 1991 California Supreme Court Case People v. Frierson (1991) 53 Cal.3d 730, where the court held that “[a]llowing a witness to be put on the stand to have the witness exercise the privilege before the jury would only invite the jury to make an improper inference.”

Bel Air Internet, LLC v. Albert Morales

    Also on Monday, February 26th, Justices Lui, Chavez, and Hoffstadt reversed an order from Los Angeles County Superior Court Judge Recana denying Defendants’ Anti-SLAPP motion.  The case originates from a fractious relationship between Bel Air Internet, and its former employees Albert Morales and Flavio Delabra, who contend that Bel Air Internet wrongfully terminated them.  Bel Air Internet’s complaint alleges several causes of action predicated on the alleged facts that Mr. Morales and Delabra engaged in a campaign to disrupt its business operations by encouraging employees to quit, creating a false appearance of being terminated by Bel Air Internet and suing Bel Air Internet for employment-related claims.

    In Mr. Morales and Delabra’s Anti-SLAPP motion, they declared that the allegations of the complaint were false, and denied engaging in any of the activities described, but rather being wrongfully terminated by Bel Air Internet after being denied overtime pay, rest breaks, and meal breaks.  On reviewing the motion to strike, the court of appeal held that while a trial court is required to consider both the allegations in the complaint and the declarations of the parties, the decision as to whether the conduct is protected activity can be based solely on whether the allegations in the complaint are based on protected activities.  Accordingly, a defendant may simultaneously deny the allegations of the complaint and take advantage of the Anti-SLAPP protections if the allegations are predicated on protected activities, as the entire purpose of the Anti-SLAPP statute is to weed out meritless claims arising from protected conduct.

    As to the merits of the action, the court additionally found that the allegations that Mr. Morales and Delabra “advised, counseled, encouraged and sought to persuade” other employees to refuse to sign a release of claims and to instead pursue wage and hour litigation against Bel Air Internet was sufficient to evidence the type of speech that was in “serious consideration of litigation” protected by the litigation privilege, and under Anti-SLAPP.  Specifically, the court considered that the speech alleged by Bel Air Internet was “in furtherance of the person’s right of petition”  even if the communications were made on behalf of another contemplated in the 1999 California Supreme Court Case Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106 and the 1993 California Supreme Court Case .  Ultimately this court held that “A rule that predicates the protected status of a pre-litigation communication on the subjective intent of the recipientRubin v. Green (1993) 4 Cal.4th 1187 of the communication would undermine the purpose of the anti-SLAPP statute.  A person who counsels litigation by another exercises his or her own constitutional right to petition the government.”

Wayne Redfearn v. Trader Joe’s Company

    On Tuesday, February 27th, Justices Perluss, Zelon, and Segal reversed and remanded Los Angeles County Superior Court Judge Feuer’s judgment of dismissal following Trader Joe’s demurrer to Mr. Redfearn’s First Amended Complaint.  This case arises out of a business dispute between Trader Joes and a food brokerage, Caliber Sales and Marketing – Caliber assigned all of its legal claims against Trader Joes to Mr. Redfearn in Two-Thousand and Fourteen, and the instant litigation commenced.

    Mr. Redfearn alleged in his First Amended Complaint that Trader Joes intentionally interfered with its business relationship with one of its food suppliers, Seneca Foods Corporation.  Specifically, Mr. Redfearn alleged that Trader Joes made false accusations against Mr. Redfearn in order to pressure Seneca to break its relationship with Caliber, which it did.  In sustaining Trader Joes’ demurrer without leave to amend, the trial court was bound by the reasoning in the 2007 case PM Group, Inc. v. Stewart (2007) 154 Cal. App. 4th 55, which held that contracts where performance depends on a non-signatory to the contract, such as how Caliber’s contract with Seneca depended on Trader Joes, were not “strangers to the contract” for an intentional interference cause of action, and thus could not state a claim on that basis.

    The appellate court noted that while the trial court was bound by the decision in PM Group, it was not, and distinguished the facts of PM Group from those here by noting that in PM Group the underlying actions were based on merely a failure to perform rather than the tortuous interference alleged in this case.  Instead, the court reasoned that this case was more similar to the 2016 case PPopescu v. Apple Inc. (2016) 1 Cal. App. 5th 39, which held that being a third-party beneficiary to a contract is insufficient to establish that an alleged interferer is “not a stranger” to a contract.  Accordingly, the court ultimately ruled that “A nonparty to a contract that contemplates the nonparty’s performance, by that fact alone, is not immune from liability for contract interference.  Liability is properly imposed if each of the elements of the tort are otherwise satisfied.”

Randall Pittman v. Beck Part Apartments, Limited, et alterius

    Also on Tuesday, February 27th, Justices Perluss, Segal, and Bensinger affirmed Los Angeles County Superior Court Judge Rosenblatt’s determination that Mr. Pittman is a vexatious litigant.  This 2018 decision has its roots in the actions taken by Mr. Pittman before 2010, when he filed and dismissed multiple pro per actions against former employers, former attorneys, and former landlords.  Leading up to being declared a vexatious litigant in 2010, Mr. Pittman engaged in a campaign of disinformation on the Court and other parties in order to have the issue of him being a vexatious litigant collaterally estopped in some of his other concurrent suits, and attempted to strategically dismiss the party bringing the motion, and then the litigation where the motion was to be heard.

    The trial court nevertheless had the authority to declare Mr. Pittman a vexatious litigant, and did so at that time, Mr. Pittman has been trying to vacate that order for going on eight years.  However, rather than avail himself of the mechanisms to remove the vexatious litigant designation described in Code of Civil Procedure Section 391.8, Mr. Pittman sought to have the order vacated as void.  In considering the appeal to the motion’s denial, the court of appeal reasoned that there is no time limit to challenging an order that is facially void due to lack of jurisdiction – which was the basis of Mr. Pittman’s instant motion – and so the motion itself should be heard.

    In its consideration of the merits of the motion, the court analogized the determination of a vexatious litigant order to an order for attorney’s fees or sanctions, over which courts may retain jurisdiction even after entry of dismissal.  In particular, the court of appeals extended the reasoning of the 2002 case Bravo v. Ismaj (2002) 99 Cal. App. 4th 211, which reasoned that pending litigation is not necessary for the determination of vexatious litigant status, as the purpose of the statute is to protect future defendants from unmeritorious and harassing filings.

Travis Sakai v. Massco Investments, LLC

    On Thursday, March 1st, Justices Rothschild, Johnson, and Bendix certified for publication their February 8th decision affirming Los Angeles County Superior Court Judge Duffy-Lewis’s entry of summary judgment on grounds that Massco Investments could not foresee Mr. Sakai’s injury.  In 2013 Mr. Sakai was attempting to find parking in order to purchase food from a food truck.  In doing so, he backed into another car, causing both cars to suffer superficial damage, and angering the second driver.
Rather than exchange insurance information with Mr. Sakai, the second driver got back into his vehicle and rapidly drove off – striking Mr. Sakai and dragging him for a distance in the process.  Mr. Sakai then instigated the instant lawsuit against Massco, the owner of the property where the accident took place, for causes of action sounding in negligence; upon which summary judgment was granted in favor of Massco on the grounds that the accident was not foreseeable.

    In affirming the trial court’s decision, the appeals court relied on its analysis of the foreseeability factors described in the 1986 case Rowland v. Christian (1968) 69 Cal.2d 108, and determined that the closeness of Massco’s alleged conduct to the alleged injury was highly attenuated by the second driver’s intervening conduct.  The Court analyzed this factor in light of the 1995 case Bryant v. Glastetter (1995) 32 Cal.App.4th 770 and the 1994 case Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, and held that the conduct of the second driver constituted the type of unanticipated, unforeseeable occurrences that do not subject a property owner to liability absent notice that these incidents were happening.

Supreme Court – Roundup

Starting on Tuesday, March 6th and continuing to the 8th, the Supreme Court will be hearing oral arguments on Fourteen matters.  There will be Eleven involving criminal prosecutions together with Three civil issues.  The civil matters set to be heard are:

  • In Liberty Surplus Insurance v. Ledesma and Meyer Construction, the Ninth Circuit Court of Appeals has requested that the Supreme Court opine as to whether there is a QUOTE “occurrence” END-QUOTE for the purposes of an employer’s liability coverage when a third party who was intentionally injured by an employee brings a negligent hiring action against the employer.
  • Is United Riggers and Erectors v. Coast Iron & Steel which asks the Supreme Court to resolve whether a contractor can withhold retention payments if there is a good-faith dispute of any kind, or whether such withholding can only occur when the dispute relates to the retention itself.
  • And finally, is Delano Farms Company v. California Table Grape Commission which involves the question of whether a company’s free speech rights are infringed when they are compelled to pay a state-empowered industry board to engage for promotional activities on the industry’s behalf.

Additionally, there are other issues of constitutional law, including an issue related to social media privacy in criminal proceedings that will be heard this week, so you may want to pay close attention to Facebook Inc. v. Superior Court.

In the Supreme Court’s Weekly Summary of Accepted Cases, there are Two civil cases whose petitions have been accepted for hearing:

  • First is Noel v. Thrifty Payless, Inc., which is set to address whether a plaintiff seeking class certification under California law needs to demonstrate that records exist that would permit the identification of class members.
  • And Second are the consolidated Southern California Gas Leak Cases, where the Court will look to address whether a plaintiff who is harmed by a man-made environmental disaster can state a claim for negligence against the gas company allegedly causing said disaster when the damages sustained are purely economic.