Saller v. Crown Cork & Seal Co., Inc., B206763, involved plaintiffs' wrongful death suit based on theories of negligence, strict liability, false representation, and intentional failure to warn, based on the death of decedent from mesothelioma. In reversing a jury verdict in favor of the defendants, the court held that the consumer expectations test applied to the use of asbestos at the oil refinery and his testimony concerning his expectations about its safety in its ordinary use at the refinery were sufficient to require a jury instruction on the issue. The court also held that the question should have been submitted to the jury under a strict liability failure to warn theory as to whether the decedent, who worked at the refinery from 1959 to 1967, was entitled to a warning about the dangers of using asbestos without precautions i n light of the prevailing knowledge at the time. Lastly, the court held that the exclusion of CACI No. 1205 was not harmless.
August 2010 Archives
Tanen v. Southwest Airlines Co., B217818, concerned a challenge to the trial court's order sustaining defendant's demurrer on the ground that plaintiff's claims were preempted by the federal Airline Deregulation Act (ADA), in plaintiff's suit against an airline for refusing to honor an expired $100 travel certificate, claiming that the expiration date violated Civil Code section 1749.5, which makes it unlawful to sell a gift certificate that contains an expiration date.
Giacometti v. Aulla, LLC, B217615, involved employees' suit for professional negligence against an accounting firm, claiming that the firm negligently or fraudulently over-reported income on their W-2 forms by including tip money taken by the restaurant managers as income to the employees.
Worldmark, The Club v. Wyndham Resort Dev. Corp., C061019, concerned a challenge to the trial court's denial of a nonprofit mutual benefit corporation's petition to set aside a member's section 8330 demand on the ground that it had satisfied its statutory obligations in proposing an alternative. In affirming the judgment with modification, the court held that the information the member seeks, including email addresses, shall be made available to him in electronic form at his option and no further written demand is necessary. Also, if any member's address is not in electronic form, the corporation shall provide a written copy of such address to the member. Lastly, the court held that the member or his appointed representative must acknowledge in writing his agreement not to use or allow use of the membership information for commercial or other purposes not reasonably related to the affairs of the corporation.
Ted Jacob Eng'g. Group, Inc. v. Ratcliff Architects, A122932, involved a subcontractor's suit against defendant-architects for breach of contract and other causes of action, in connection with a city hospital renovation and expansion project. In affirming the judgment of the trial court, the court held that in the absence of a negotiated agreement upon price, and assuming no contrary contractual provision applies, a subcontractor may still pursue a claim seeking a judicial determination of additional fees when it performs work demanded of it by the general contractor constituting a material change in the scope of work defined under the contract. Further, if good faith negotiation between the parties fails to result in agreement on price, the subcontractor is not required to elect between the job and forfeiting its right of recovery if it elects to perform the required work.
Purdum v. Holmes, B216493, involved a plaintiff's action against a licensed notary for knowingly notarizing a third-party's signature on a deed as if it were plaintiff's, purporting to transfer plaintiff's interest to the third-party. In affriming the trial court's judgment in favor of the notary, the court held that the trial court did not abuse its discretion when it set aside defendant's default. Further, the trial court correctly concluded that each of plaintiff's causes of action against defendant was barred by the six-year maximum limitation period that is prescribed for an action against a notary in his official capacity by section 338(f)(3), regardless of delayed discovery.
People v. Duff, S153917, concerned a challenge to the court of appeals' affirmance of the trial court's denial of defendant's request for presentence conduct credit, claiming that because execution of sentence for the second degree murder conviction of his one year-old son was stayed pursuant to section 654, the prohibition against the earning of presentence conduct credit for persons convicted of murder that is established by section 2933.2(c) should not have been applied to the calculation of presentence conduct credit against his term of imprisonment for assault on a child.
Qualified Patients Ass'n v. City of Anaheim, G040077, concerned a challenge to the trial court's order sustaining the city's demurrer to plaintiffs' complaint without leave to amend, in plaintiffs' action against the City of Anaheim, seeking a declaratory judgment that state's medical marijuana laws preempted the city's ordinance prohibiting medical marijuana dispensaries within the city.
Util. Consumers' Action Network v. Pub. Util. Comm'n of the State of California, D055666, involved a plaintiff's petition for a writ of review challenging Public Utilities Commission of the State of California (Commission) decision granting San Diego Gas and Electric Company's (SDG&E) application for a certificate of public convenience and necessity to construct a transmission project.
Walnut Producers of California v. Diamond Foods, Inc., C060346, involved plaintiff-walnut producers' class action suit against Diamond Foods, claiming that defendant breached an agreement by failing to pay them the reasonable market value for their walnuts. In affirming the trial court's order striking all class action allegations from the complaint, the court held that the plaintiffs have not pleaded sufficient facts showing the class action waiver's unconscionability to survive defendant's motion to strike the class action allegations in the complaint. Further, the class action waiver is not void as against public policy and the enforcement of public rights as it does not affect an unwaivable statutory right.
Fisher v. DCH Temecula Imports LLC, E047802, involved a plaintiff's suit for injunctive relief, restitution, rescission, and damages both on her own behalf and as a class action lawsuit against an automobile dealer, claiming several causes of action including violation of the California Legal Remedies Act (CLRA).
Schwartz v. Poizner, A126217, involved a plaintiff's petition for a writ of mandate seeking to compel the Commissioner of the California Department of Insurance to pursue additional remedies against the insurers that will inure to the benefit of class members, in his suit against the insurers on behalf of himself and California residents holding disability income policies issued by the insurers who, like him, submitted no claims under their policies but allegedly were overcharged for their policies in view of the insurers' unlawfully restrictive claims procedures and who received no benefit under the terms of the settlement agreement.
Bay Guardian Co. v. New Times Media LLC, A122448, concerned a challenge to a jury verdict in favor of the plaintiff for approximately $16 million, in Bay Guardian's suit against San Francisco Weekly (competing alternative newspapers in the San Francisco Bay Area), claiming unfair competition under California law for offering advertising to business entities at a rate lower than was provided by the Bay Guardian.
Vitug v. Alameda Point Storage Inc., A124999, involved a plaintiff's suit against a storage facility claiming, among other things, causes of action under the Unfair Business Practices Act and the Consumer Legal Remedies Act (CLRA) based on allegations that defendant violated the California Self-Service Facility Act (Act) by continuing to charge rent and late fees after terminating her right to use her storage unit in a notice of lien sale. In affirming the trial court's grant of defendant's motion for summary judgment and defendant's subsequent no-merit motion regarding the CLRA claim, the court held that the Act does not itself prohibit the charging of rent and late fees after termination of a renter's access to his or her unit. Also, the Act defers to the underlying renter agreement for determination of what charges are proper and may be included in the lien, an issue that has been forfeited by plaintiff.
Soifer v. Chicago Title Co., B217956, concerned a challenge to the trial court's order sustaining defendant's demurrer without leave to amend, in plaintiff's suit against a title company for negligence and negligent misrepresentations. In affirming, the court held that plaintiff cannot recover for errors in title company's statements regarding the condition of title to a property in the absence of a policy of title insurance or the purchase of an abstract of title.
People v. Cox, B207285, concerned a challenge to convictions of defendants for murder and jurors' findings that a principal personally discharged a firearm causing great bodily injury and death and that the murder was committed for the benefit of a criminal street gang. In affirming the convictions, the court held that no constitutional error occurred during the jury selection process since the trial court complied with its constitutional obligation to engage in a sincere and reasoned effort to evaluate the nondiscriminatory justifications provided by the deputy district attorney.
Estate of Manuel, B210701, involved an executor's suit against a will contestant, seeking an award of costs of proof in the amount of all of her legal fees incurred after the date of the denial of the requests for admission. In reversing and remanding the trial court's grant of the motion ordering defendant and her counsel to pay the executor the full amount of her legal fees, the court held that the text of Code of Civ. Proc. section 2033.420(a), is unambiguous that costs of proof may be imposed only against a party, not the party's counsel.
Ebbetts Pass Forest Watch v. California Dep't of Forestry & Fire Prot., F058062, concerned a challenge to the trial court's denial of plaintiffs' request for attorney's fees, following the California Supreme Court's finding in favor of the defendant, in environmental groups' suit seeking to overturn California Department of Forestry and Fire Protection's (CDF) approval of three timber harvest plans for logging in Tuolumne County, claiming that CDF had not followed the law in approving the plans. In affirming, the court held that the trial court did not abuse its discretion in denying attorney's fees as plaintiffs have failed to meet their burden to show they were successful within the meaning of section 1021.5 considering they did not receive a favorable judgment nor did they achieve their strategic objective of overturning the approval and halting timber operations until additional environmental assessments were performed.
- Full text of Vitug v. Alameda Point Storage Inc., A124999
- Full text of Soifer v. Chicago Title Co., B217956
- Full text of People v. Cox, B207285
- Full text of Estate of Manuel, B210701
- Full text of Ebbetts Pass Forest Watch v. California Dep't of Forestry & Fire Prot., F058062
People v. Jones, D055087, concerned a challenge to a conviction of defendant for attempted voluntary manslaughter and for shooting at an occupied vehicle. In affirming the conviction, the court held that the trial court correctly instructed the jury that a person standing outside a vehicle who, while holding a gun reaches into the vehicle through an open window or door and fires the gun, may be convicted of shooting "at" an occupied vehicle.
People v. Hall, B215310, concerned a challenge to a conviction of defendant of multiple counts, including second degree murder, assault upon a peace officer, and driving under the influence causing injury, arising from defendant's flight from police in a vehicle pursuit which resulted in the deaths of two individuals. In affirming the convictions, the court held that the defendant did not forfeit the blood sample's chain of custody claim on appeal, but the assertion of error lacks merit. Also, the trial court did not commit reversible error when it denied defendant's motion for a new trial on the ground that new evidence had been discovered.
Mito v. Temple Recycling Ctr., Corp., B219934, involved a plaintiff's personal injury suit against defendants arising from a motor vehicle accident. In reversing and remanding a trial court's dismissal of the complaint for failure to file it within the statute of limitations, the court held that the clerk was required to file the complaint as first presented on July 24 because, although LASC Local Rule 2.0(d) required the Cover Sheet, California Rules of Court, rule 3.220(c) prohibited the court clerk from rejecting the filing for failure to comply with this rule.
King v. Willmett, C059236, concerned a challenge to the trial court's grant of defendant's post-trial motion for reduction of medical billings for part medical expenses, in plaintiff's personal injury suit against a defendant for injuries sustained in an automobile accident. In reversing, the court held that, in light of the public policy conclusions expressed by the California Supreme Court and the Legislature's enactment of specific statutes governing the operation of the collateral source rule in limited kinds of cases, reduction is inappropriate in this case, and as such, the trial court violated the collateral source rule by reducing the jury's award of past medical expense damages to the cash amount paid by plaintiff's HMO.
Kern County Dep't of Human Serv. v. Superior Court, F060314,concerned a County Department of Human Services' petition for a writ of mandate, challenging a juvenile court's refusal to find that the department properly noticed a parent of a jurisdictional/dispositional hearing on juvenile dependency supplemental and subsequent petitions. In granting the petition, the court held that the Hague Service Convention does not apply to supplemental and subsequent juvenile dependency proceedings in light of the juvenile court's ongoing dependency jurisdiction and provided it has previously found proper notice to the parent. Alternatively, assuming that Convention could apply to supplemental and subsequent juvenile dependency proceedings, any duty to serve notice under the Convention was discharged in this case by the father's general appearance in the juvenile court after the department filed its subsequent and supplemental petitions.
People v. Brady, S078404, concerned a challenge to a conviction of a defendant for first degree murder of a police officer and a sentence of death. The California Supreme Court affirmed the conviction on automatic appeal over claims of error regarding: 1) trial court's exclusion of certain evidence including third party culpability and possible bias in key witness's testimony; 2) the sufficiency of the evidence to support the first degree murder verdict; 3) asserted Griffin error; 4) jury instruction on consciousness of guilt; 5) trial court's admission of victim impact evidence; 6) prosecutorial misconduct during closing argument; 7) jury instruction on a juror's refusal to deliberate; 8) denial of defendant's automatic application for modification of the death verdict; 9) arbitrary imposition of the death penalty; 10) delay in the appointment of appellate counsel; 11) execution following lengthy confinement; and 12) constitutional challenges to California's death penalty statute.
Lu v. Hawaiian Gardens Casino, Inc., S171442, concerned a card dealer's suit against his casino employer, claiming that the casino's mandatory tip pooling policy constituted conversion of his tips and violated Labor Code section 351. In affirming the court of appeal's affirmance of the trial court's conclusion that section 351 does not provide a private cause of action for employees to recover any misappropriated tips from employers, the court held that, based on the review of section 351's legislative history, there is no clear indication that the Legislature intended to create a private cause of action under the statute.
Clark v. Superior Court, S174229, involved senior citizens' suit against an insurance company, claiming deceptive business practices relating to the purchase and sale of annuity contracts, and claiming that statutory law entitled them to a trebling of the award. In reversing the court of appeal's grant of plaintiffs' petition for a writ of mandate directing the trial court to enter a new order denying defendant's motion for judgment on the pleadings, the court held that, because Civil Code section 3345 authorizes the trebling of a remedy only when it is in the nature of a penalty, and because restitution under the unfair competition law is not a penalty, an award of restitution under the unfair competition law is not subject to section 2234's trebling provision.
- Full text of People v. Jones, D055087
- Full text of People v. Hall, B215310
- Full text of Mito v. Temple Recycling Ctr., Corp., B219934
- Full text of King v. Willmett, C059236
- Full text of Kern County Dep't of Human Serv. v. Superior Court, F060314
- Full text of People v. Brady, S078404,
- Full text of Lu v. Hawaiian Gardens Casino, Inc., S171442
- Full text of Clark v. Superior Court, S174229
Countrywide Fin. Corp. v. Bundy, B215912, concerned a challenge to the trial court's order vacating the partial arbitration awards against Countrywide Financial Corporation on the ground that the arbitrator committed a number of legal errors, in defendants' arbitration demands on behalf of themselves and others similarly situated against Countrywide and its wholly owned subsidiary, seeking classwide arbitration claims for unpaid wages and other related claims.
In reversing, the court held that, because the parties unambiguously agreed that any award would be reviewed as it would be by a federal district judge applying the Federal Arbitration Act, the partial awards in this case are reviewed utilizing the vacatur provisions of Federal Arbitration Act which would be applied by a United States District Court judge. Here, under the vacatur provisions of the Federal Arbitration Act, no grounds permitted the partial awards to be vacated. The court held that although it is uncertain whether the manifest disregard of the law vacatur rule remains extant, the rule is applied to this case and the federal excess of powers standard of judicial review to the partial rewards, and thus, the order vacating the partial arbitration awards is reversed.
- Full text of Countrywide Fin. Corp. v. Bundy, B215912
Trackman v. Kenney, C061165, concerned a challenge to a trial court's grant of defendant's motion to vacate a default judgment entered in favor of plaintiff, finding that the evidence showed no actual service on defendant. In reversing, the court held that, because defendant's motion was filed more than two years after entry of judgment, the trial court's review was limited to the face of the record, and therefore, the trial court erred by considering the evidence attached to defendant's motion. Further, although the use of a fictitious name may at times be risky, leading to a successful evidentiary challenge to service, it does not make proof of service void on its face.
Mariscal v. Los Angeles City Employee Relations Bd., B218133, concerned a plaintiff's petition for a writ of mandate, challenging an administrative decision rendered by defendant Employee Relations Board (ERB) recognizing Service Employees International Union Local 721 as the exclusive bargaining representative for certain city employees. In affirming the trial court's denial of the petition, the court held that the trial court did not apply the Corporations Code. Also, a separate vote by the affected local bargaining units was not required. Lastly, the court held that the plaintiff was not denied a fair administrative hearing.
Los Angeles Unified Sch. Dist. v. Casasola, B215465, involved plaintiffs' request for reimbursement from a school district for relocation expenses, arising from the school district's acquisition of plaintiffs' property by eminent domain. In affirming the judgment of the trial court, the court held that the trial court did not err in rejecting the plaintiffs' claim for expenses incurred to mitigate loss of goodwill of their business. The court also held that the trial court did not err in enforcing the stipulated $5,000 per day penalty.
Henderson v. Pac. Gas & Elec. Co., F058002, concerned a challenge to the trial court's denial of plaintiff's motion to vacate the order on the motion for summary judgment and resulting judgment under section 473(b)In plaintiff's suit against her former employer, PG&E, claiming employment discrimination in violation of the California Fair Employment and Housing Act (FEHA) and breach of contract. In affirming, the court held that the trial court did not abuse its discretion in denying plaintiff's request for discretionary relief under section 473(b) from entry of summary judgment in favor of PG&E as plaintiff's counsel's mistakes were inexcusable mistakes. The court also held that plaintiff is not entitled to mandatory relief under section 473(b) because such relief is not available for summary judgments.
- Full text of Trackman v. Kenney, C061165
- Full text of Mariscal v. Los Angeles City Employee Relations Bd., B218133
- Full text of Los Angeles Unified Sch. Dist. v. Casasola, B215465
- Full text of Henderson v. Pac. Gas & Elec. Co., F058002
Reid v. Google, Inc., S158965, concerned a challenge to the court of appeal's reversal of trial court's grant of defendant's motion for summary judgment, in plaintiff's age discrimination lawsuit against his former employer, Google, Inc.
People v. Stanley, C063661, concerned a challenge to the trial court's order of restitution in the amount of $2,812.94 for repairs to a truck, in a prosecution of defendant for felony vandalism of the truck. In affriming, the court disagreed with People v. Yanez (1995) 38 Cal.App.4th 1622, to the extent that Yanez sets out a rigid rule that a trial court could never award more than a vehicle's market value. The court agreed with In re Dina V. (2007) 151 Cal.App.4th 486, where the statutes implementing Proposition 8 give the trial court a choice between market value and feasible repair cost. Therefore, the trial court did not abuse its discretion in awarding the victim the cost of repairing the vehicle, even if that amount exceeds the replacement value of the vehicle.
Khan v. Los Angeles City Employees' Ret. Sys., B214685, concerned a challenge to the trial court's judgment in favor of plaintiff granting his petition for writ of mandate compelling the Los Angeles City Employees Retirement System (LACERS) to approve his request for concurrent deferred retirement benefits with LACERS and the Judicial Retirement System (JRS). In reversing, the court held that there is no reciprocity between LACERS and JRS/JRS II, such that plaintiff, a judge of the Superior Court of Los Angeles County who had worked for the City of Los Angeles as a City Attorney, may retire from LACERS at his higher judicial salary. Further, the provisions relating to the County Employees' Retirement Law of 1937 (CERL) do not control the court's analysis.
People v. Verdugo, S083904, concerned a challenge to a conviction of defendant for first-degree murder and a sentence of death. On automatic appeal, the court affirmed the conviction and the sentence over claims of error regarding: 1) trial court's error in refusing to appoint Keenan counsel; 2) failure to disclose Brady and section 1054.1 material; 3) evidentiary issues; 4) instructional error; 5) trial court's failure to limit the prosecution's victim impact evidence; 6) scope of cross examination; 7) alleged Griffin error; 8) timing of defense closing argument; 9) challenges to California's death penalty scheme; 10) denial of new trial motion; 11) denial of request to discharge retained counsel; 12) cumulative prejudice; and 13) alleged violation of international law.
Haworth v. Superior Court, S165906, concerned a challenge to the court of appeal's affirmance of the superior court's order vacating an arbitration award in favor of a physician on the ground that the neutral arbitrator had failed to disclose a matter "that could cause a person aware of the facts to reasonably to entertain a doubt that the...neutral arbitrator would be able to be impartial," in a female patient's suit against the physician for negligence in performing plastic surgery on her lip. In reversing, the court held that the neutral arbitrator, a former judge of the superior court, was not required to disclose to the parties the circumstances that 10 years earlier, he received a public censure based upon his conduct toward and statements to court employees, which together created "an overall courtroom environment where discussion of sex and improper ethnic and racial comments were customary."
Coral Constr. Inc. v. City & County of San Francisco, S152934, concerned an action against the City and County of San Francisco brought by construction companies, challenging the 2003 version of an ordinance that preferentially awards public contracts to minority-owned business enterprises (MBE's) and women-owned business enterprises (WBE's) as unconstitutional. In affirming the judgment of the court of appeal, the court held that the political structure doctrine does not invalidate section 31 of Article I of the California Constitution (forbidding a city awarding public contracts to discriminate or grant preferential treatment based on race or gender), which was approved by voters via Proposition 209. Also, there is no merit in the argument that the federal funding exception exempts the 2003 ordinance from section 31's general prohibition of racial preferences, and as such, no triable issue of fact exists on this point to preclude summary judgment for plaintiffs. Lastly, the court held that the court of appeal was correct in reversing superior court's grant of summary judgment for plaintiffs on the city's Federal Compulsion argument that the federal equal protection clause requires the 2003 ordinance as a remedy for the city's own discrimination, and in remanding for the limited purpose of adjudicating this issue.
- Full text of People v. Verdugo
- Full text of Haworth v. Superior Court
- Full text of Coral Constr. Inc. v. City & County of San Francisco
Silguero v. Creteguard, Inc, B215179, concerned a challenge to the trial court's judgment after sustaining without leave to amend the defendant-employer's demurrer to the second amended complaint In plaintiff's suit against her employer for wrongful termination, arising from former employer's contacts with subsequent employer to inform it that plaintiff had signed a noncompetition agreement. In reversing the judgment, the court held that, because of Business and Professions Code section 16600's legislative declaration of California's settled legislative policy in favor of open competition and employ mobility, plaintiff has a viable claim under Tameny v. Atlantic Richfield.
Sacramento Suncreek Apartments, LLC v. Cambridge Advantaged Prop. II, LP, C060886, concerned a challenge to the trial court's grant of defendants' motion to quash service and to dismiss, in plaintiffs' suit against two nonresident limited partners of an Oregon limited partnership that owned and operated an apartment complex in California for many years, arising from claims that defendants sold apartments to plaintiffs that were contaminated with mold. In affirming the judgment, the court held that there is no personal jurisdiction under the circumstances presented, because the only contact between the nonresident limited partners and California was their investment in a partnership that operated in this state and plaintiffs' claims do not arise from that investment but from the partnership's business.
Pinnacle Museum Tower Ass'n v. Pinnacle Market Dev. (US), LLC, D055422, concerned a challenge to the trial court's order denying defendant-developer's motion to compel arbitration in a homeowners association's suit against the developer of a condominium project for a construction defect. In affirming, the court held that an arbitration provision in a declaration of CC&Rs recorded by the association without the written consent of the developer did not constitute an "agreement" sufficient to waive the constitutional right to jury trial for construction defect claims brought by the homeowners association. Further, assuming the homeowners association is bound by a jury waiver provision contained in purchase and sale agreements signed by the individual homeowners, the jury waiver provision in the purchase and sale agreements is not enforceable because it is unconscionable.
People v. Alvarado, E049321, concerned a prosecution of defendant for attempted lewd act on a child under 14 years old and other crimes. In affirming the trial court's order requiring defendant to register as a sex offender, the court held there is no equal protection violation in imposing mandatory registration for defendant's attempted section 288(a) conviction.
In re D.G., A126655, concerned a challenge to a conviction of a minor defendant for first degree burglary and other crimes. In modifying the juvenile court's order placing a condition on the defendant's probation from coming within 150 feet of any school campus other than the school he is attending, the court held that the condition, as drawn, was unreasonable because it was not related to defendant's offenses and does not prohibit otherwise criminal conduct, and there is no evidence in the record to suggest the condition will serve a rehabilitative purpose by preventing his future criminality.
California Teachers Ass'n v. Governing Bd. of the Salinas City Elementary Sch. Dist., H033788, involved a California Teachers Association's (CTA) and a local teachers unions' suit against a school district, claiming that the district's interpretation of the parties' collective bargaining agreement created teacher pay disparities in violation of Education Code section 45028 and that contract language freezing advancement for some but not all teachers for the 2005-2006 school year created additional salary uniformity violations. In affirming the trial court's judgment sustaining defendants' demurrer without leave to amend, the court held that the parties' collective bargaining agreement requires the unions to exhaust their internal grievance/arbitration procedures before resorting to the courts, and as such, the trial court did not err when it sustained defendants' demurrer for failure to allege exhaustion of those procedures.
- Full text of Silguero v. Creteguard, Inc
- Full text of Sacramento Suncreek Apartments, LLC v. Cambridge Advantaged Prop. II, LP
- Full text of Pinnacle Museum Tower Ass'n v. Pinnacle Market Dev. (US), LLC
- Full text of People v. Alvarado
- Full text of In re D.G
- Full text of California Teachers Ass'n v. Governing Bd. of the Salinas City Elementary Sch. Dist