California Case Summaries: Monthly™ Every California Civil & Family Law Case

California Case Summaries: Monthly™
Every California Civil & Family Law Case Published in
January 2019

By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee at ADR Services, Inc.
Civil Trial Lawyer | National ABOTA Board Member | Ca. Attorney since 1980
For ADR Services, Inc. scheduling, contact my case manager Christopher Schuster
Phone: (619) 233-1323. Email: christopher@adrservices.com
Monty’s Web: http://montymcintyre.com/mcintyre
Monty’s cell: (619) 990-4312. Monty’s email: monty@montymcintyre.com

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CALIFORNIA COURTS OF APPEAL
Arbitration

Cohen v. TNP 2008 Participating Notes etc. (2019) _ Cal.App.5th _ , 2019 WL 364463: The Court of Appeal reversed the trial court’s order denying a petition to vacate a judgment confirming an arbitration award. The Court of Appeal ruled that (1) an attorney does not have standing to petition to compel arbitration of his clients’ claims; (2) a signatory to an arbitration agreement can compel a nonsignatory parent company of a signatory subsidiary on an agency theory where (a) the parent controlled the subsidiary to such an extent that the subsidiary was a mere agent or instrumentality of the parent and (b) the claims against the parent arose out of the agency relationship; (3) the arbitrator did not exceed his authority by substituting the attorney’s clients as the real parties in interest in the arbitration; and (4) the arbitrator did not exceed his authority by denying attorney fees to a party that prevailed in the arbitration. The judgment was vacated and the matter was remanded with several directions for the trial court. (C.A. 2nd, January 29, 2019.)

Rymel v. Save Mart Supermarkets (2018) _ Cal.App.5th _ , 2018 WL 6839332: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration in an action alleging various state law statutory employment claims. All of plaintiffs’ claims were based on nonnegotiable state law policies against medical condition discrimination and related torts under the California Fair Employment and Housing Act (FEHA; Government Code, section 12900 et seq.), whistleblower retaliation (Labor Code, section 1102.5), and discipline in violation of public policies set by positive law (FEHA and the workers’ compensation statutes). The Court of Appeal ruled that the collective bargaining agreement providing for arbitration of employment grievances did not provide for arbitration of workers’ claims based on violations of state anti-discrimination or retaliation statutes, and federal labor relations laws did not preempt such claims. (C.A. 3rd, December 31, 2018.)

Vasquez v. San Miguel Produce, Inc. (2019) _ Cal.App.5th _ , 2019 WL 364268: The Court of Appeal reversed the trial court’s order denying a motion to compel arbitration. Plaintiffs were hired by Employer’s Depot, Inc. (EDI), a staffing agency, and they agreed in writing to arbitrate all disputes that may arise within the employment context. EDI assigned plaintiffs to pack produce for defendants San Miguel Produce, Inc. et al. Plaintiffs later sued defendants for labor law violations, and defendants cross-complained against EDI. The Court of Appeal ruled that arbitration was mandated even though plaintiffs did not name EDI as a defendant. Defendants and EDI were co-employers with an identity of interests and mutual responsibility for complying with state law governing employers in the produce packing industry. Plaintiffs agreed to arbitrate all disputes arising from their employment and at all relevant times EDI was their employer. (C.A. 2nd, filed January 3, 2019, published January 30, 2019.)

Attorney Fees

Conservatorship of Ribal (2019) _ Cal.App.5th _ , 2019 WL 255502: The Court of Appeal reversed the trial court’s order awarding attorney fees of $43,507.50 incurred in enforcing an underlying judgment. Because the motion for attorney fees was made after the judgment was satisfied in full, it was untimely under Code of Civil Procedure, section 685.080(a). (C.A. 4th, January 18, 2019.)

Linton v. County of Contra Costa (2019) _ Cal.App.5th _ , 2019 WL 290982: The Court of Appeal affirmed the trial court’s order denying plaintiff’s request for attorney fees after defendants accepted plaintiff’s Code of Civil Procedure, section 998 offer to settle her complaint alleging violations of the California Disabled Persons Act (DPA; Civil Code, section 54 et seq.) and the Unruh Civil Rights Act (Unruh Act; Civil Code, section 51 et seq.). The 998 offer included the language “attorney’s fees allowed by law as determined by the court.” The trial court properly ruled that both the Unruh Act and the DPA require a finding of liability under the statutes for an award of attorney fees. Because the 998 offer was silent as to liability under the statutes, plaintiff was not entitled to attorney fees. (C.A. 1st, January 23, 2019.)

Pont v. Pont (2019) _ Cal.App.5th _ , 2018 WL 7050979: See summary below under Family Law.

Stratton v. Beck (2019) _ Cal.App.5th _ , 2018 WL 6428092: The Court of Appeal affirmed the trial court’s order awarding plaintiff their appellate attorney fees of $57,420 under Labor Code section 98.2(c) plus $9,020 in fees incurred in opposing the motion to reconsider the appellate attorney fee award. Ironically, this lawsuit started over $303.50 in unpaid wages. At the end of an earlier appeal, the Court of Appeal had stated that in “the interest of justice, the parties are to bear their own costs of appeal.” (Stratton v. Beck (2017) 9 Cal.App.5th 483, 487, 498.) The Court of Appeal ruled that its order on costs did not deprive the trial court of jurisdiction to entertain plaintiff’s motion for appellate attorney fees. (C.A. 2nd, filed December 7, 2018, published January 2, 2019.)

Attorneys

O’Gara Coach Co., LLC v. Ra (2019) _ Cal.App.5th _ , 2019 WL 117220: The Court of Appeal reversed the trial court’s order denying a motion by cross-complainant O’Gara Coach Co., LLC (O’Gara) to disqualify Darren Richie and Richie Litigation P.C. from representing O’Gara’s former senior executive cross-defendant Joseph Ra (Ra) in litigation, including cross-actions between O’Gara and Ra, arising from allegations by Marcelo Caraveo that O’Gara and Ra had committed fraud in connection with Caraveo’s acquisition of luxury vehicles from O’Gara. Because Richie never had an attorney-client relationship with O’Gara Coach while employed as its president and chief operating officer (he was not yet a licensed California attorney), the trial court correctly rejected O’Gara’s argument for disqualification of Richie and Richie Litigation based on a theory of improper successive representation.  However, disqualification of Richie and his law firm was required as a prophylactic measure because the firm was in possession of confidential information, protected by O’Gara’s attorney-client privilege, concerning Ra’s allegedly fraudulent activities at issue in this litigation. (C.A. 2nd, January 7, 2019.)

Strawn v. Morris, Polich & Purdy (2019) _ Cal.App.5th _ , 2019 WL 102092: The Court of Appeal reversed in part the trial court’s order sustaining a demurrer, without leave to amend, to a complaint alleging invasion of privacy and elder abuse against defendants Douglas K. Wood and his law firm (defendants) for their conduct in representing their client State Farm General Insurance Company in processing an insurance claim by plaintiffs arising from a fire loss. Plaintiffs alleged that attorney Wood wrongfully transmitted plaintiffs’ privileged tax returns to State Farm. The Court of Appeal overruled the demurrer to the invasion of privacy cause of action because the allegations of the complaint raised a factual question as to whether, when Wood forwarded plaintiffs’ tax returns, State Farm was seriously and in good faith considering litigation. The demurrer therefore should have been overruled despite the claim of litigation privilege. (C.A. 1st, January 4, 2019.)

Civil Code

Brown v. Mortensen (2019) _ Cal.App.5th _ , 2019 WL 92023: The Court of Appeal reversed the trial court’s order finding that article I, section 16 of the California Constitution does not guarantee the right to a jury trial for nominal statutory damages claims, and/or claims for attorney fees, under the Confidentiality of Medical Information Act (CMIA: Civil Code, section 56 et seq.). The Court of Appeal ruled that a jury trial is guaranteed for CMIA’s nominal statutory damages claims brought before 2013 under section 56.36(b)(1), but not for attorneys’ fees claims under section 56.35. (C.A. 2nd, January 3, 2019.)

Mackey v. Bd. of Trustees of the Cal. State University (2019) _ Cal.App.5th _ , 2019 WL 289656: See summary below under Discrimination.

Martinez v. California Pizza Kitchen, Inc. (2019) _ Cal.App.Supp. 5th _ , 2018 WL 6980937: The Appellate Department of the San Bernardino Superior Court affirmed the trial court’s order sustaining a demurrer, without leave to amend, in an action alleging a violation of the Unruh Act (Civil Code section 51) and the American With Disabilities Act because defendant restaurant did not provide a customer with a partial hearing loss an assistive hearing device so he could hear the background music playing in the restaurant. Plaintiff was not denied the food, beverage, or hospitality services offered by defendant. Since there were no facts  alleged  indicating  the  music  was  integrated  or  otherwise connected with the food and services in any meaningful way, the demurrer was properly sustained. (Appellate District of the San Bernardo Superior Court, filed November 20, 2018, published January 8, 2019.)

Mikkelsen v. Hansen (2019) _ Cal.App.5th _ , 2019 WL 153706: See summary below under Real Property.

Strawn v. Morris, Polich & Purdy (2019) _ Cal.App.5th _ , 2019 WL 102092: See summary above under Attorneys.

Civil Procedure

Berkeley Cement, Inc. v. Regents of the Univ. of Cal. (2019) _ Cal.App.5th _ , 2019 WL 117310: The Court of Appeal affirmed a judgment, following a lengthy jury trial, finding for defendant on plaintiff’s complaint for breach of contract because defendant did not breach the contract or any implied covenant, and finding for defendant on its cross-complaint but holding that defendant was not harmed by plaintiff’s breach. However, the Court of Appeal ruled that the trial court erred in awarding defendant, as costs, $6,486.25 for deposition fees paid to plaintiff’s expert witnesses. California Code of Civil Procedure, section 1033.5 (b)(1) clearly provides that fees of experts not ordered by the court are not allowable costs, “except when expressly authorized by law.” (C.A. 5th, January 7, 2019.)

Doe v. Allee (2019) _ Cal.App.5th _ , 2019 WL 101616: See summary below under Education.

Issa v. Applegate (2019) _ Cal.App.5th _ : The Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion to strike (Code of Civil Procedure, section 425.16) a complaint alleging libel based upon two television advertisements during a congressional campaign in 2016. The parties agreed the action arose from protected activity. The trial court properly concluded that plaintiff had failed to demonstrate a probability of prevailing on his claims against defendants because he could not demonstrate that the statements in question were not substantially true. (C.A. 4th, January 24, 2019.)

Jayone Foods v. Aekyung Industrial Co. Ltd. (2019) _ Cal.App.5th _ , 2019 WL 275778: The Court of Appeal reversed the trial court’s order granting a motion to quash service of summons for lack of personal jurisdiction in a wrongful death action. The Court of Appeal ruled that Korean manufacturer cross-defendant Aekyung Industrial Co. Ltd. (Aekyung) did not merely place its products into the stream of commerce with an awareness that they might end up in California. Aekyung purposefully availed itself of the benefits of doing business in California by directing its activities toward California businesses when it repeatedly sold its products to various California distributors over a seven-year period and  purposefully derived benefits from its activities in California when it generated almost $2 million in revenue from these California sales. To satisfy the jurisdictional requirement that plaintiffs’ claims arise out of or relate to Aekyung’s forum contacts, defendant and cross-complainant Jayone Foods, Inc. (Jayone) was not required to prove that the bottles of the Humidifier Mate that it purchased directly from Aekyung in 2006 and 2007 in fact ended up in the hands of decedent. It was sufficient for Jayone to show that, within the time period covering decedent’s alleged injuries, Jayone sold bottles of the Humidifier Mate that Aekyung had shipped to Jayone in California to Kim’s Home Center in Los Angeles. (C.A. 2nd, January 22, 2019.)

Jensen v. Jensen (2019) _ Cal.App.5th _ , 2019 WL 311768: The Court of Appeal affirmed the trial court’s order granting a motion to quash service of summons regarding a cross-complaint. Defendant Kari Jenson filed and attempted to serve a cross-complaint against her sister, Trine Jenson, a resident of Utah, to allege a claim against Trine in her individual capacity for interference with prospective economic advantage. At the time Trine was the guardian ad litem for their elderly mother Grethe Jensen, who had sued Kari in Ventura County for the partition by sale of the real property that Grethe and Kari owned as joint tenants. The Court of Appeal found that Trine did not purposefully and voluntarily direct activities toward California. Her contacts with California were directed toward protecting the best interests of her “client,” Grethe, in the litigation. They did not establish purposeful availment of the benefits and protections of California law. (C.A. 2nd, January 24, 2019.)

Licudine v. Cedars-Sinai Medical Center (2019) _ Cal.App.5th _ , 2019 WL 92087: The Court of Appeal affirmed the trial court’s order denying plaintiff’s request for $2,335,929.20 in prejudgment interest because it concluded that plaintiff’s Code of Civil Procedure section 998 settlement offer, served only five days after defendant filed its answer, was not made in good faith and was “premature” because defendant had not yet had an adequate opportunity to evaluate the damages in this case. The Court of Appeal concluded that the trial court did not abuse its discretion in finding that plaintiff’s 998 offer was not made in good faith. (C.A. 2nd, January 3, 2019.)

Orange County Water Dist. v. The Arnold Engineering Co. (2019) _ Cal.App.5th _ , 2018 WL 6985345: The Court of Appeal reversed the trial court’s post-judgment order awarding defendant $615,000 in costs based upon plaintiff’s failure to admit certain fact-specific requests for admission (RFAs) during discovery in an action to recover expenses associated with the North Basin Groundwater Protection Project (NBGPP), a proposed $200 million effort intended to address groundwater contamination in northern Orange County, California caused by volatile organic compounds (VOCs) and other chemicals. The Court of Appeal ruled that the trial court abused its discretion in awarding costs as to several requests because plaintiff had reasonable grounds to believe it would prevail on the matters at issue regarding those requests. However, the trial court properly awarded costs as to three requests denied by plaintiff. The Court of Appeal ruled that expert-witness-invoice evidence was inadequate to support the award because it did not distinguish between recoverable and nonrecoverable costs. On the other hand, the Court of Appeal found that attorney invoices including a notation, for each time entry, identifying the RFAs to which that entry related could be adequate to distinguish those tasks for which an award of costs would be proper. (C.A. 4th, filed December 19, 2018, published January 10, 2019.)

Rall v. Tribune 365 LLC (2019) _ Cal.App.5th _ , 2019 WL 244552: The Court of Appeal affirmed the trial court’s order granting anti-SLAPP (Code of Civil Procedure, section 425.16) motions to strike plaintiff’s complaint alleging causes of action including defamation and for wrongful termination in violation of public policy. The complaint was filed after Los Angeles Times Communications LLC (The Times) published a “note to readers” and a later more detailed report questioning the accuracy of a blog post plaintiff wrote for The Times; stating the piece should not have been published; and stating that plaintiff’s future work would not appear in The Times. The trial court properly found that the allegations arose from protected activity and that plaintiff failed to establish a probability of prevailing on the merits. (C.A. 2nd, January 17, 2019.)

Siri v. Sutter Home Winery, Inc. (2019) _ Cal.App.5th _ , 2019 WL 289651: See summary below under Employment.

Yu v. Liberty Surplus Ins. Corp. (2019) _ Cal.App.5th _ , 2018 WL 6929257: The Court of Appeal affirmed the trial court’s orders granting summary judgment and motions for judgment on the pleadings in favor of defendants in a judgment creditor’s action (under Insurance Code section 11580(b)(2)) against several insurance companies to collect a 1,264,604.77 default judgment entered against insureds Fitch Construction and Fitch Plastering who had been named as cross-defendants in a cross-complaint filed in a construction defect action. The cross-complaint had alleged “damages according to proof.” The trial court properly ruled that the default judgment was void and invalid because the cross-complaint failed to allege a specific money demand. (C.A. 4th, filed December 11, 2018, published January 4, 2019.)

Zhang v. Jenevein (2019) _ Cal.App.5th _ , 2019 WL 297397: The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike (Code of Civil Procedure, section 425.16) a complaint alleging invasion of privacy and eavesdropping due to defendant secretly recording confidential conversations in violation of Penal Code sections 632 and 637.2. Defendant’s actions in recording the conversations and using the recordings in a contractual arbitration were not made in connection with a judicial or official proceeding authorized by law as discussed in section 425.16, so they were not protected activities under section 425.16. (C.A. 2nd, filed January 2, 2019, published January 23, 2019.)

Construction

Berkeley Cement, Inc. v. Regents of the Univ. of Cal. (2019) _ Cal.App.5th _ , 2019 WL 117310: See summary above under Civil Procedure.

Contractors

JMS Air Conditioning etc. v. Santa Monica Community College Dist. (2019) _ Cal.App.5th _ , 2018 WL 6604052: The Court of Appeal affirmed the trial court’s denial of a writ of administrative mandate seeking to overturn the administrative decision by respondent that allowed a contractor with respondent, real party in interest Bernards Bros., Inc., to substitute another subcontractor in the place of petitioner on a construction project for respondent. Petitioner sought to overturn the decision under the Subletting and Subcontracting Fair Practices Act (the Act; Public Contract Code, section 4100 et seq.). The Court of Appeal ruled that neither the substitution hearing nor the substitution decision affected a fundamental vested right, the Act affords subcontractors only limited ancillary rights, substantial evidence supported the substitution decision, and the trial court properly denied the writ petition. (C.A. 2nd, filed December 17, 2018, published January 3, 2019.)

Court Reporters

Dogan v. Comanche Hills Apartments (2019) _ Cal.App.5th _ , 2019 WL 275564: The Court of Appeal reversed the trial court’s order granting defendant’s motion for nonsuit in a personal injury/premises liability action. Plaintiff was granted a fee waiver on grounds of indigency. Based upon then-existing court policy, plaintiff’s later request for a waiver of court reporter fees was denied. Based upon the California Supreme Court decision in Jameson v. Desta (2018) 5 Cal.5th 594, holding that the San Diego Superior Court’s policy on providing court reporters was invalid as applied to fee waiver recipients, the Court of Appeal reversed and remanded for a new trial at which an official court reporter is to be provided. (C.A. 4th, January 22, 2019.)

Disability

Linton v. County of Contra Costa (2019) _ Cal.App.5th _ , 2019 WL 290982: See summary above under Attorney Fees.

Discrimination

Mackey v. Bd. of Trustees of the Cal. State University (2019) _ Cal.App.5th _ , 2019 WL 289656: The Court of Appeal reversed the trial court’s order granting summary judgment for defendant in an action by female African-American college basketball players alleging discrimination and retaliation claims against their coach. The Court of Appeal ordered the trial court to grant summary adjudication as to some, but not all claims by plaintiffs. Plaintiffs could not sue defendant under 42 United States Code, sections 1981 and 1983 because California State University at San Marcos (CSUSM) is not a “person” subject to suit under those statutes. Summary adjudication was improper as to claims by four freshman plaintiffs of racial discrimination under title VI of the Civil Rights Act of 1964 (42 U.S.C., section 2000d et seq.) and the Unruh Civil Rights Act (Unruh Act; Civil Code, section 51 et seq.). Summary adjudication was also improper on the title VI retaliation claims brought by three of the four freshman plaintiffs. (C.A. 4th, January 23, 2019.)

Education

Doe v. Allee (2019) _ Cal.App.5th _ , 2019 WL 101616: The Court of Appeal reversed the trial court order denying a writ of administrative mandate seeking to overturn petitioner’s expulsion from the University of Southern California (USC) after petitioner was found to have engaged in nonconsensual sex with another USC student, Jane Roe, in violation of the university’s Student Conduct Code. Although petitioner failed to prove respondents were biased against him, the Court of Appeal ruled that USC’s disciplinary procedure failed to provide a fair hearing. When a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross–examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments.
(C.A. 2nd, January 4, 2019.)

Ricasa v. Office of Admin. Hearings (2019) _ Cal.App.5th _ , 2018 WL 7021473: The Court of Appeal affirmed but modified the trial court’s judgment denying two writs for administrative mandamus seeking to overturn petitioner’s demotion from an academic administrator position to a faculty position at Southwestern Community College District (District) on the grounds of moral turpitude, immoral conduct, and unfitness to serve. The Court of Appeal ruled that the District did not violate the Ralph M. Brown Act (Brown Act; Government Code, section 54950 et seq.) by not providing petitioner with 24 hours’ notice of the hearing at which it heard charges against her, and it reversed the trial court’s order enjoining the District from committing future Brown Act violations. (C.A. 4th, filed December 17, 2018, published January 14, 2019.)

Employment

Duffey v. Tender Heart Home Care Agency (2019) _ Cal.App.5th _ , 2019 WL 168654: The Court of Appeal reversed the trial court’s order granting summary judgment for defendant on the basis that plaintiff was an independent contractor. The action alleged failure to pay overtime wages under the Domestic Worker Bill of Rights (DWBR; Labor Code, section 1450 et seq.). The trial court erred in exclusively applying the so-called “common law” test set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello) to determine the independent contractor issue. The trial court erred in applying the standard articulated in Borello to determine whether plaintiff was an independent contractor or an employee. Applying the reasoning of the California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, the Court of Appeal ruled that the independent contractor issue should have been determined by the standard set in the DWBR. In addition, under the appropriate tests, there was a dispute of fact as to whether plaintiff was defendant’s employee. (C.A. 1st, January 11, 2019.)

Furry v. East Bay Publishing (2019) _ Cal.App.5th _ , 2018 WL 6930903: The Court of Appeal affirmed in part and reversed in part the trial court’s judgment, after a bench trial, concluding that plaintiff was not entitled to damages in a wage and hour action because his testimony was too uncertain to support a just and reasonable inference that he performed work for which he was not paid, and finding that plaintiff was provided with uninterrupted meal and rest breaks as required by law. The Court of Appeal held it was error to completely deny plaintiff relief on his overtime claim because imprecise evidence by an employee can provide a sufficient basis for damages when the employer fails to keep accurate records of the employee’s work hours. It ruled that plaintiff was not entitled to premium or regular pay for missed meal breaks because he failed to demonstrate that defendants reasonably should have known he was working through authorized meal breaks. (C.A. 1st, filed December 12, 2018, published January 4, 2019.)

Nisei Farmers League v. CA Labor & Workforce Dev. Agency (2019) _ Cal.App.5th _ , 2019 WL 99087: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to plaintiffs’ complaint alleging that newly enacted Labor Code, section 226.2, articulating wage requirements applicable where an employer uses a piece-rate method of compensating its employees, was unconstitutionally vague would be improperly applied retroactively. The Court of Appeal ruled that plaintiffs failed to allege an adequate basis for finding the statute to be facially unconstitutional and the trial court’s denial of the declaratory relief requested was appropriate. (C.A. 5th, January 4, 2019.)

Rymel v. Save Mart Supermarkets (2018) _ Cal.App.5th _ , 2018 WL 6839332: See summary above under Arbitration.

Siri v. Sutter Home Winery, Inc. (2019) _ Cal.App.5th _ , 2019 WL 289651: The Court of Appeal reversed the trial court’s order granting summary judgment for defendant in an action alleging wrongful termination and retaliation for plaintiff having brought to the attention of defendant’s management and the Board of Equalization defendant’s failure to have paid use taxes owed by the company in violation of Labor Code, section 1102.5 and public policy. The summary judgment was improperly granted on the premise that plaintiff had acknowledged that she could not prove her case without the tax returns of defendant,  but plaintiff had made no such acknowledgement, and defendant did not prove this to be true. (C.A. 1st, January 23, 2019.)

Stratton v. Beck (2019) _ Cal.App.5th _ , 2018 WL 6428092: See summary above under Attorney Fees.

Vasquez v. San Miguel Produce, Inc. (2019) _ Cal.App.5th _ , 2019 WL 364268: See summary under Arbitration above.

Environment

Berkeley Hills Watershed Coalition v. City of Berkeley (2019) _ Cal.App.5th _ , 2019 WL 365765: The Court of Appeal affirmed the trial court’s order denying a writ petition challenging the approval of the construction of three new single-family homes on adjacent parcels in the Berkeley Hills. The Court of Appeal rejected petitioner’s arguments that (1) the proposed construction was subject to the “location” exception to the Class 3 exemption for “up to three single-family residences” in urbanized areas under the California Environmental Quality Act (CEQA; Public Resources Code, section 21000 et seq.) and (2) that respondent failed to comply with several provisions of its zoning ordinance in approving the project. (C.A. 1st, January 30, 2019.)

McCorkle Eastside Neighborhood Group v. City of St. Helena (2019) _ Cal.App.5th _ , 2018 WL 6985452: The Court of Appeal affirmed the trial court’s order denying a petition for peremptory and administrative writ of mandate filed in opposition to respondent’s approval of the development of an eight-unit multifamily residential building in St. Helena. Respondent’s City Council made extensive findings and concluded that California Environmental Quality Act (CEQA) review “limited to design issues such as scale, orientation, bulk, mass, materials and colors,” and the proposed project would not result in design-related CEQA impacts, and these findings were supported by substantial evidence. (C.A. 1st, filed December 18, 2018, published January 10, 2019.)

Evidence

Fernandez v. Alexander (2019) _ Cal.App.5th _ , 2019 WL 336517: See summary below under Medical Malpractice.

Family Law

In re Marriage of Begian & Sarajian (2019) _ Cal.App.5th _ , 2018 WL 7077186: The Court of Appeal reversed the family court’s order finding that a Trust Transfer Deed signed by husband granting certain real property to his wife satisfied the requirements of Family Code section 852(a). The Court of Appeal ruled that, without an express statement specifying what interest in the property was granted to wife, the reference to a Trust Transfer left the document’s purpose ambiguous and rendered the purported transmutation invalid under section 852(a). (C.A. 2nd, filed December 20, 2018, published January 18, 2019.)

Lief v. Superior Court (2019) _ Cal.App.5th _ , 2018 WL 6381614: The Court of Appeal granted a petition for writ of mandate ordering the family court to vacate its order denying petitioner’s ex parte application for an order preventing respondent from removing their child from this state to Israel, and to enter a new order granting the application. The family court erred when it ruled the 30-day statutory stay under Code of Civil Procedure, section 917.7 commenced with its tentative decision on August 10, 2018 granting respondent’s move-away request. The court’s oral statement of its decision at the end of the August 10 hearing was not a judgment or order. The 30-day statutory stay period did not begin to run until the family court filed the judgment granting respondent’s move-away request on November 7. (C.A. 4th, filed December 6, 2018, published January 2, 2019.)

Perow v. Uzelac (2019) _ Cal.App.5th _ , 2019 WL 395735: The Court of Appeal affirmed the family court’s order awarding wife sanctions of $149,672.12, under Family Law section 271, for her opposition to husband’s request for modification of the custody order because his request was fatally flawed from the outset due to his failure to disclose his status as a registered sex-offender. Wife only sought attorney fee sanctions in her responsive papers. The Court of Appeal ruled that an attorney fees sanction under section 271 is not a form of “affirmative relief” within the meaning of Family Code section 213. A party seeking attorney fees under section 271 is not seeking affirmative relief within the meaning of section 213 because the request for such fees is an attack on the messenger, not his message. (C.A. 2nd, January 31, 2019.)

Pont v. Pont (2019) _ Cal.App.5th _ , 2018 WL 7050979: The Court of Appeal affirmed the family court’s order awarding husband attorney fees and costs of $90,000, under an attorney fee clause in a family law stipulated judgment, after husband successfully demurred and obtained a judgment in a civil lawsuit filed by his ex-wife alleging husband had siphoned some of the community assets that were subject to the stipulated judgment. The Court of Appeal ruled that the attorney fees provision in the stipulated judgment encompassed the fees and costs because of its broad language, particularly the phrase “in connection therewith.” The family law court did not abuse its discretion in deeming husband  the prevailing party, and it did not abuse its discretion in awarding $90,000 in attorney fees and costs and finding that counsel’s hourly rates and number of charged hours were reasonable. (C.A. 2nd, filed December 20, 2018, published January 16, 2019.)

Food and Agriculture

Caltec AG v. Dept. of Pesticide Regulation (2019) _ Cal.App.5th _ , 2019 WL 76806: The Court of Appeal affirmed the trial court’s judgment denying petitioner’s petition for writ of administrative mandamus pursuant to Food and Agricultural Code section 12999.4 and Code of Civil Procedure section 1094.5 challenging a final administrative decision of respondent (Department or DPR) concluding that three of petitioner’s products were pesticides and imposing fines totaling $784,000 because the products should have been registered as pesticides before being sold in California. The Court of Appeal ruled that substantial evidence supported the findings that products Greenfeed 27-0-0 and Terra Treat were spray adjuvants and pesticides. Substantial evidence supported the finding that Kelpak was a plant growth regulator and therefore a pesticide. (C.A. 5th, January 2, 2019.)

Government

Anderson-Barker v. Superior Court (2019) _ Cal.App.5th _ : The Court of Appeal denied a petition for writ of mandate seeking to compel the trial court to vacate its order denying a petition under the California Public Records Act (CPRA; Government  Code, sections 6250, et seq.,) to compel the City of Los Angeles (City) to disclose electronically-stored data relating to vehicles that private towing companies had impounded at the direction of the Los Angeles Police Department. The Court of Appeal ruled that the City’s right to access the data held by a third party was insufficient to establish constructive possession under the CPRA. (C.A. 2nd, January 22, 2019.)

San Diegans for Open Govt. v. City of San Diego (2019) _ Cal.App.5th _ , 2018 WL 7047276: The Court of Appeal affirmed the trial court’s judgment denying the petition for writ of mandate and complaint for declaratory and injunctive relief challenging the approval of an amended and restated lease that the City of San Diego (City) entered into with Symphony Asset Pool XVI, LLC (Symphony) to lease City-owned land containing an oceanfront amusement park in San Diego’s Mission Beach neighborhood. The Court of Appeal rejected petitioner’s arguments that the approval violated Proposition G (passed by the City’s electorate in 1987), was not exempt from the requirements of the California Environmental Quality Act (CEQA; Public Resources Code, section 21000 et seq.); and violated section 99 of the City Charter. (C.A. 4th, filed December 27, 2018, published January 15, 2019.)

Labor

Internat. Brotherhood of Teamsters v. City of Monterey Park (2019) _ Cal.App.5th _ , 2019 WL 117168: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, to a writ petition challenging Respondent’s decision to award the municipal bus operation contract to First Transit instead of the incumbent operator MV Transportation (MV). MV promised in its bid to retain the employees of the prior contractor (MV) for at least 90 days. The bid of First Transit did not make this promise. The Court of Appeal ruled that, for a bidder to get a 10-percent bidding preference under Labor Code section 1072(a), it must state in its bid whether it will retain the employees of the prior contractor for 90 days. The Court of Appeal also ruled that whether a variance in the bidding process is inconsequential is a question of fact, subject to review for substantial evidence, that is not properly decided on demurrer. The trial court erred in sustaining the demurrer without leave to amend. (C.A. 2nd, January 7, 2019.)

Landlord – Tenant

Smyth v. Berman (2019) _ Cal.App.5th _ , 2019 WL 156761: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, in an action by a tenant plaintiff against his landlord and others for damages allegedly arising from the landlord’s rejection of plaintiff’s offer to purchase the real property based upon an undefined “right of first refusal to purchase” in a written lease. Ruling on an issue of first impression, the Court of Appeal ruled that a right of first refusal contained in a written lease was not an essential term of the lease, and it expired when the leasehold ended and the tenant became a “holdover” tenant. A right of first refusal is not an essential term that carries forward into a holdover tenancy unless the parties so indicate. (C.A. 2nd, January 10, 2019.)

Medical Malpractice

Fernandez v. Alexander (2019) _ Cal.App.5th _ , 2019 WL 336517: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in a medical malpractice action alleging malpractice in connection with the treatment of plaintiff’s fractured wrist. Although the trial court found triable issues of material fact on the standard of care, because plaintiff’s expert did not explain the basis for, or state any facts or reasons to support his opinion on causation, the trial court properly granted summary judgment. (C.A. 2nd, January 28, 2019.)

Real Property

Ditzian v. Unger (2019) _ Cal.App.5th _ , 2019 WL 312070: The Court of Appeal affirmed the trial court’s judgment, following a bench trial, finding plaintiffs were entitled to a prescriptive easement allowing them to cross defendant’s parcel on a path leading to MacKerricher State Park. The Court of Appeal rejected all of defendant’s arguments, including his primary argument that the easement was a public easement prohibited by Civil Code, section 1009. (C.A. 1st, January 24, 2019.)

Mikkelsen v. Hansen (2019) _ Cal.App.5th _ , 2019 WL 153706: Based upon the post-judgment decision of the California Supreme Court in Scher v. Burke (2017) 3 Cal.5th 136 (Scher), the Court of Appeal reversed the trial court’s finding of an implied-in-fact and implied-in-law dedication of property used for a pedestrian path between two residential developments. Scher ruled that Civil Code, section 1009(b) proscribes implied-in-law dedications of private noncoastal property. The Court of Appeal ruled that section 1009(b) also prohibits implied-in-fact dedications of private noncoastal property. (C.A. 5th, January 10, 2019.)

Prout v. Dept. of Transportation (2019) _ Cal.App.5th _ , 2018 WL 7018047: The Court of Appeal affirmed the trial court judgment, following a bench trial, finding that defendant and cross-complainant validly accepted plaintiff’s offer of dedication of a strip of his property by physically occupying the strip for its highway improvements, awarding specific performance on the cross-complaint, and ordering plaintiff to execute a deed. The Court of Appeal ruled that plaintiff’s challenge to the dedication under Nollan v. California Coastal Commission (1987) 483 U.S. 825 was barred by his failure to file a timely petition for writ of mandamus. Plaintiff’s inverse condemnation claim failed because substantial evidence supported the trial court’s finding that plaintiff made an offer to dedicate the entire strip of land in 1990 and did not revoke the offer before defendant accepted it by physically using the strip to make highway improvements in 2010-2011. (C.A. 3rd, filed December 18, 2018, published January 11, 2019.)

Smyth v. Berman (2019) _ Cal.App.5th _ , 2019 WL 156761: See summary above under Landlord – Tenant.

Venice Coalition etc. v. City of Los Angeles (2019) _ Cal.App.5th _ , 2019 WL 141477: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant in an action where plaintiffs alleged that defendant had engaged in a pattern and practice of illegally exempting certain development projects in Venice from permitting requirements in the Venice Land Use Plan and in the California Coastal Act. The trial court properly granted summary judgment on all five causes of action. (C.A. 2nd, January 9, 2019.)

Settlement

Linton v. County of Contra Costa (2019) _ Cal.App.5th _ , 2019 WL 290982: See summary above under Attorney Fees.

Pont v. Pont (2019) _ Cal.App.5th _ , 2018 WL 7050979: See summary above under Family Law.

Taxes

DFS Group, L.P. v. County of San Mateo (2019) _ Cal.App.5th _ , 2019 WL 397181: The Court of Appeal reversed the trial court’s order affirming the Assessment Appeals Board (Board) decision that approved the valuation methodology (income method or capitalization method) used by the San Mateo County Assessor (Assessor) in reassessing the value, for property tax purposes, of the possessory interest plaintiff obtained under a seven-year extension of its exclusive lease and concession to sell merchandise duty-free at the San Francisco International Airport (SFO). The Court of Appeal ruled that by capitalizing the entire fee plaintiff was required to pay SFO for its rights under their agreement during the seven-year extension period without deducting the value of its exclusive concession rights, the Assessor directly taxed those non-taxable intangible rights in violation of Revenue and Taxation Code, sections 110(d) and 212(c). (C.A. 1st, January 31, 2019.)

Dondlinger v. L.A. County Regional Park etc. (2019) _ Cal.App.5th _ , 2019 WL 395177: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for judgment on the pleadings against plaintiff’s complaint seeking to invalidate a voter-approved special property tax imposed by defendant. The Court of Appeal ruled that the special tax satisfied Public Resources Code, section 5566’s uniformity requirement, the trial court properly granted the motion for judgment on the pleadings, and the trial court did not abuse its discretion in denying plaintiff leave to amend the complaint. (C.A. 2nd, January 31, 2019.)

Harmony Gold U.S.A., Inc. v. County of Los Angeles (2019) _ Cal.App.5th _ , 2019 WL 365823: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, without leave to amend, to a complaint seeking reimbursement of real property tax payments. Plaintiff overpaid in property taxes as a result of the assessor’s nonjudgmental error, an erroneous change-in-ownership determination that reset its property’s base value. Defendant refunded the taxes plaintiff overpaid beginning in 2011, the year plaintiff first challenged the erroneous base value, but not for prior years. The Court of Appeal ruled that Revenue and Taxation Code, section 80 barred the tax refund claim for earlier years. (C.A. 2nd, filed January 3, 2019, published January 30, 2019.)

Torts

Dogan v. Comanche Hills Apartments (2019) _ Cal.App.5th _ , 2019 WL 275564: See summary above under Court Reporters.

Yee v. Superior Court (2019) _ Cal.App.5th _ , 2019 WL 138519: The Court of Appeal granted a petition for a writ of mandate and directed the trial court to vacate its order denying petitioner’s motion for judgment on the pleadings in the underlying action. The underlying action was a complaint for abuse of process filed by Thrivent Financial for Lutherans (Thrivent) against petitioner Controller of the State of California. Thrivent alleged petitioner and the Office of the State Controller (OSC) had improperly used information obtained from Thrivent in discovery in a prior case to conduct and complete an audit of Thrivent in willful disregard of a court order and protective order. The trial court erred in denying the motion for judgment on the pleadings on the basis that petitioner was vicariously liable for the acts of its employees under Government Code section 815.2(a). Only petitioner could conduct the audit, and petitioner was immune under Government Code section 815(a). A public entity cannot be held vicariously liable for acts of its employees that are actually acts of the entity. Vicarious liability only arises when the employee is independently liable for the act and the act was within the scope of his or her employment. (C.A. 1st, January 8, 2019.)

Trusts and Estates

Smith v. Szeyller (2019) _ Cal.App.5th _ , 2019 WL 211103: The Court of Appeal affirmed the trial court’s order, as part of a stipulated settlement, awarding plaintiff $721,258.28 for attorney and expert fees and costs to be paid from assets of the trust and its sub-trusts. After his mother died, plaintiff filed objected to accountings provided by the trustees and filed a verified petition questioning over $2 million worth of expenditures, gambling, and gifts to the trustees from the Survivor’s Trust accounts during the last years of his mother’s life, asking the court to freeze the trust accounts and remove the trustees and order them to pay redress for breach of trust, and seeking an award of attorney’s fees to be paid from all three sub-trusts which, he alleged, would substantially benefit from his efforts. The Court of Appeal ruled that the trial court had the equitable power to award the agreed-upon fees to plaintiff under the “substantial benefit doctrine”, and non-participating beneficiary Donna Smith forfeited her objections to the fee award by not objecting to plaintiff’s petitions and objections. (C.A. 2nd, January 16, 2019.)

Trolan v. Trolan (2019) _ Cal.App.5th _ , 2019 WL 365977: The Court of Appeal reversed the trial court’s orders removing siblings as trustees and ordering the replacement trustee to liquidate and distribute the trust assets. The Court of Appeal agreed with the trial court that the trust required the liquidation and distribution of the trust assets upon the death of the last surviving parent because all of the siblings were over 30 years old. However, the trial court erred when it ordered liquidation of the trust assets to accomplish that purpose, rather than deferring to the discretion of the trustees to distribute the trust, and its orders removing the parties as trustees and requiring the trust to pay all attorney fees and costs flowed from that error. (C.A. 6th, January 30, 2019.)

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