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?

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