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.


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.

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