Week in Review (March 05, 2018)

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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.


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