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McIntyre’s Civil Alert

U.S. SUPREME COURT

No cases

9th CIRCRUIT COURT OF APPEAL

Americans With Disabilities Act

Cohen v. City of Culver City _ F.3d _ (9th Cir. 2014), 2014 WL 2535329: The Court of Appeals reversed in part the district court’s summary judgment for defendants. The Court of Appeals concluded that a genuine dispute of material fact existed as to whether the City denied plaintiff access to the sidewalk by reason of his disability by allowing a vendor’s display to completely block the curb ramp, impeding disabled access to the public sidewalk, and by failing to post signs identifying alternative disabled access routes. (June 6, 2014.)

Class Actions
Laguna v. Coverall North America Inc. _ F.3d _ (9th Cir. 2014): The Court of Appeals affirmed the district court’s approval of a settlement agreement reached before class certification. The district court properly concluded that the settlement, including an award of attorney fees of $994,800, was fair, reasonable, and adequate. (June 3, 2014.))

Consumer Protection
Sinibaldi v. Redbox Automated Retail, LLC _ F.3d _ (9th Cir. 2014), 2014 WL 2535471: The Court of Appeals affirmed the district court’s dismissal under Rule 12(b)(6). Redbox’s collection of personal ZIP code information in kiosk rental transactions fell outside the reach of California Civil Code section 1747.08(a) of the California Song-Beverly Credit Card Act because the customer’s credit card was used as a deposit to secure payment in the event of loss or late return, and the transaction was therefore exempt under section 1747.08(c)(1). (June 6, 2014.)

CALIFORNIA SUPREME COURT

Evidence
People v. Goldsmith (2014) _ Cal.4th _ , 2014 WL 2519: The California Supreme Court affirmed the rulings of the Court of Appeal and the trial court regarding the admissibility of automated traffic enforcement system (ATES) evidence. The trial court did not abuse its discretion in ruling that the police investigator’s testimony provided sufficient authentication to admit the ATES evidence and that the ATES evidence was not hearsay. (June 5, 2014.)

CALIFORNIA COURTS OF APPEAL

Attorney Fees
Syers Properties III, Inc v. Rankin (2014) _ Cal.App.4th _ , 2014 WL 1761923: The Court of Appeal affirmed the trial court’s award of $843,245.27 in attorney fees to prevailing defendants under Civil Code section 1717 and Code of Civil Procedure section 1033.5. The trial court did not abuse its discretion in accepting defense counsel’s computation of attorney hours as hours reasonably spent working on the case. Nor did the trial court abuse its discretion in making the rate determination. The rate determination was supported not only by the adjusted Laffey Matrix, but also by Attorney Finney, an attorney with more than 20 years experience in civil litigation of this type, who stated under penalty of perjury his opinion as to the prevailing rate in the San Francisco Bay Area for the services performed by the attorneys and paralegals in the case at rates virtually identical to those calculated in the Laffey Matrix as adjusted for the San Francisco-San Jose-Oakland Region. (C.A. 1st, filed May 5, 2014, published May 27, 2014.)

Civil Procedure (anti-SLAPP)
California Public Employees Retirement System v. Moodys Invest (2014) _ Cal.App.4th _ , 2014 WL 2186539: The Court of Appeal affirmed the trial court’s denial of an anti-SLAPP motion. The trial court properly concluded that, although CalPERS’ complaint was based upon conduct by the rating agency defendants that fell within the scope of the anti-SLAPP statute, early dismissal would be improper because CalPERS had successfully demonstrated a probability of prevailing on the merits of its sole claim of negligent misrepresentation. (C.A. 1st, May 23, 2014.)
City of Montebello v. Vasquez (2014) _ Cal.App.4th _ , 2014 WL 2424914: The Court of Appeal affirmed the trial court’s denial of an anti-SLAPP motion because defendants failed to demonstrate that their conduct constituted protected activity. The City sued city council members and a city official for violations of Government Code section 1090, which prohibits city officers and employees from having a financial interest in any contract made by them in their official capacity. Defendants claimed their votes were protected activity. The Court of Appeal disagreed, observing that an elected representative’s vote and acts of governance mandated by law, without more, are not exercises of free speech or petition. (C.A. 2nd, filed April 30, 2014, published May 30, 2014.)
Graham v. Bank of America (2014) _ Cal.App.4th _ , 2014 WL 2149725: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend to the second amended complaint. Plaintiff alleged that defendants made fraudulent misrepresentations or omissions by stating the appraised fair market value of his home in 2004 was “increasing” and the loan was “good” for him while allegedly knowing the appraisal was “outrageously speculative.” Plaintiff sought to hold the defendants responsible for the decline in his property value as well as the collapse of the real estate market. Plaintiff’s allegations failed to state causes of action for fraud and deceit, violations of Business and Professions Code section 17200, and declaratory relief. (C.A. 4th, May 23, 2014.)
Piccinini v. California Emergency Management Agency (2014) _ Cal.App.4th _ , 2014 WL 2443867: The Court of Appeal affirmed in part and reversed in part the trial court’s order sustaining a demurrer, without leave to amend, to plaintiff’s first amended complaint. Plaintiff was offered and accepted employment as a deputy chief in the California Emergency Management Agency. The Friday night before he was to report for work, he was told not to come because the position for which he was hired had been eliminated. The trial court properly sustained the demurrer to the breach of contract and wrongful termination causes of action. However, the trial court erred in sustaining the demurrer to the promissory estoppel cause of action because plaintiff alleged a claim for estoppel within the scope of Government Code 19257. (C.A. 1st, May 27, 2014.)
Staniforth v. The Judges’ Retirement System (Chiang) (2014) _ Cal.App.4th _ , 2014 WL 2212515: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, but reversed its order denying a subsequent motion to partially vacate that order. The trial court properly sustained the demurrer by defendant to plaintiffs’ claim they had been underpaid because they had not been given proper cost of living adjustments. But the trial court erred in denying the motion to partially vacate the order sustaining the demurrer on the basis that, under the case law as interpreted by the JRS and adopted by the trial court, their action had asserted viable claims on behalf of 10 class members who were allegedly not paid the amounts due to them under case law as interpreted by the trial court. (C.A. 4th, filed May 19, 2014, published May 29, 2014.)

Corporations (contractors)
E. J. Franks Construction, Inc. v. Sahota (2014) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s ruling the plaintiff corporation could sue for quantum meruit for work performed. Mr. Franks became a licensed general building contractor in 1995 and operated a sole proprietorship for years. During the course of constructing a home for defendants, Mr. Franks incorporated his company under the name E. J. Franks Construction, Inc. (EJFCI) and on April 12, 2005, his contractor’s license was reissued to the corporation. The trial court properly rejected defendants’ claim that EJFCI was prohibited by Business and Professions Code section 7031 from pursuing quantum meruit damages because it was an unlicensed contractor at the time the construction contract was entered into. Section 7031 did not apply to the unique situation in this case because to do so would not advance the statute’s goal of precluding unlicensed contractors from maintaining actions for compensation. (C.A. 5th, June 5, 2014.)

Employment
Piccinini v. California Emergency Management Agency (2014) _ Cal.App.4th _ , 2014 WL 2443867: See summary above under Civil Procedure.

Government
Disenhouse v. Peevey (2014) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s ruling that it lacked jurisdiction. Plaintiff filed a motion for an injunction in the trial court to stop members of the PUC from meeting because they would not allow her to attend. The trial court properly ruled it lacked jurisdiction because Public Utilities Code section 1759 deprives the superior courts of jurisdiction “to enjoin, restrain, or interfere with” the Public Utilities Commission (Commission) in the performance of its official duties. Although Government Code section 11130 authorizes any interested person to “commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations” of the state’s open meeting law, a person desiring to commence such an action against the Commission may only do so by filing a petition for writ of mandate in the Supreme Court or the Court of Appeal. (C.A. 4th, June 3, 2014.)

Medical Board of California
Lewis v. Superior Court (Medical Board of California) (2014) _ Cal.App.4th _ , 2014 WL 2212122: The Court of Appeal affirmed the trial court’s denial of a writ petition. Dr. Lewis filed a writ petition claiming the Medical Board of California violated his patients’ informational privacy rights in their controlled substances prescription records when the Board obtained data from the Controlled Substance Utilization Review and Evaluation System (CURES, see Health & Safety Code section 11165) during a disciplinary investigation of Dr. Lewis. The Court of Appeal concluded the CURES statute does not amount to an impermissible invasion of the state constitutional right to privacy of patients, because there are sufficient safeguards to prevent unwarranted public disclosure and unauthorized access to CURES data. (C.A. 2nd, May 29, 2014.)

Real Property
Graham v. Bank of America (2014) _ Cal.App.4th _ , 2014 WL 2149725: See summary above under Civil Procedure.
San Francisco Beautiful v. City and County of San Francisco (AT&T California) (2014) _ Cal.App.4th _ , 2014 WL 2306654: The Court of Appeal affirmed the trial court’s judgment for defendants on a writ petition. Defendants approved a project by AT&T California to install 726 metal utility boxes housing telecommunications equipment on San Francisco sidewalks in order to expand its fiber-optic network. Plaintiff’s writ petition challenged the approval claiming it violated the California Environmental Quality Act (CEQA). The trial court properly denied the writ petition because the project fell within a categorical exemption under CEQA. (C.A. 1st, filed April 30, 2014, published May 30, 2014.)
Sierra Club v. County of Fresno (Friant Ranch, L.P.) (2014) _ Cal.App.4th _ , 2014 WL 2199317: The Court of Appeal reversed the trial court’s judgment for defendants on a writ petition. The writ petition challenged the approval of the Friant Ranch project, a proposed master-planned community for persons age 55 or older located in north-central Fresno County (the Project), located on 942 acres of unirrigated grazing land adjacent to the unincorporated community of Friant, below Friant Dam and Millerton Lake, near the San Joaquin River. The Court of Appeal found the Project was consistent with land use and traffic policies, and found no problem with the adequacy of the Environmental Impact Report (EIR) regarding wastewater disposal. The Court of Appeal, however, concluded the EIR was inadequate in addressing air quality impacts, and a revised EIR was required. (C.A. 5th, May 27, 2014.)

Torts
Haver v. BNSF Railway Co. (2014) _ Cal.App.4th _ , 2014 WL 2466570: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend. The trial court properly relied on the holding in Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15 when it sustained a demurrer without leave to amend in a wrongful death action based on premises liability brought by the survivors of a woman who died of mesothelioma as a result of exposure to asbestos from her husband’s work clothes. (C.A. 2nd, June 3, 2014.)


See U.S. Supreme Court opinions at:
http://www.supremecourt.gov/opinions/opinions.aspx
See 9th Cir. opinions at:
http://www.ca9.uscourts.gov/opinions/
See Ca. opinions at:
http://www.courts.ca.gov/opinions.htm


Monty A. Mcintyre

Monty A. McIntyre follows his passions for the law and serving others by serving as a mediator, arbitrator and motion referee to help individuals, businesses and lawyers obtain rapid, reasonable resolution of disputes. He is also the Publisher of McIntyre’s California Civil Law Update and can be reached at 619-990-4312 or monty.mcintyre@gmail.com.

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Filed Under: Business ManagementFeatured Stories

About the Author: Monty A. McIntyre follows his passions for the law and serving others by serving as a mediator, arbitrator and motion referee to help individuals, businesses and lawyers obtain rapid, reasonable resolution of disputes. He is also the Publisher of McIntyre’s California Civil Law Update and can be reached at 619-990-4312 or monty.mcintyre@gmail.com.

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