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McIntyre’s Civil Alert. Organized Succinct Summaries

CALIFORNIA COURTS OF APPEAL

Civil Procedure
(Attorney Fees, Discovery)
Bui v. Nguyen (2014) _ Cal.App.4th _ , 2014 WL 5449782: The Court of Appeal reversed the trial court’s order granting attorney fees under Code of Civil Procedure section 1021.5. The trial court abused its discretion in granting attorney fees under section 1021.5 because plaintiff failed to establish that private enforcement was necessary to protect the public from false advertising by defendant. (C.A. 6th, October 28, 2014.)

Evilsizor v. Sweeney (2014) _ Cal.App.4th _ , 2014 WL 5449805: The Court of Appeal affirmed the trial court and held that a trial court may impose sanctions under Code of Civil Procedure section 1987.2 against a litigant for belatedly withdrawing a motion to quash that, even though legitimately filed, was rendered unnecessary by a subsequent amendment or withdrawal of the subpoena. (C.A. 1st, October 28, 2014.)

Class Action
Kight v. CashCall, Inc. (2014) _ Cal.App.4th _ , 2014 WL 5573457: The Court of Appeal affirmed the trial court’s order decertifying the class. On remand after an appeal, the trial court properly granted CashCall’s motion to decertify a class action alleging violations of California Penal Code section 632, which imposes liability on a “person” who intentionally “eavesdrops upon or records [a] confidential communication” and engages in this conduct “without the consent of all parties.” The class was properly decertified based primarily on the argument that the issue of whether any particular class member could satisfy the reasonable expectation of privacy test required an assessment of numerous individual factors, and these individual issues predominated over any remaining common issues, making a continued class action unmanageable. (C.A. 4th, filed October 9, 2014, published November 4, 2014.)

Employment
Godfrey v. Oakland Port Services Corp. (2014) _ Cal.App.4th _ , 2014 WL 5439289: The Court of Appeal affirmed the trial court judgment of $964,557.08 in a wage and hour class action. The Court of Appeal found no merit in defendant’s argument that federal law preempts application of California’s meal and rest break requirements to motor carriers, or the other various arguments. (C.A. 1st, October 28, 2014.)

Legal Malpractice
Kasem v. Dion-Kindem (2014) _ Cal.App.4th _ , 2014 WL 5464694: The Court of Appeal affirmed the trial court’s demurrer without leave to amend regarding the third amended complaint. Plaintiff sued for legal malpractice claiming her attorney negligently failed to designate and call an expert witness at the underlying trial on the issue of whether sewage qualified as a “Hazardous Material” under the lease after the trial court denied the attorney’s request to take judicial notice of statutes which included sewage in the definition of hazardous material. The demurrer was properly sustained because it was the trial court’s error in not taking judicial notice of the statutes, not attorney negligence, that caused the result. Because plaintiff never appealed that decision, the trial court’s error could not be corrected. (C.A. 2nd, filed October 3, 2014, published October 29, 2014.)

Torts
Amerigas Inc. v. Landstar Ranger, Inc. (2014) _ Cal.App.4th _ , 2014 WL 5408653: The Court of Appeal affirmed the bench trial judgment in favor of cross-defendant Landstar Ranger, Inc. (Landstar). Truck driver Steven K. King sued AmeriGas Propane, L.P. (AmeriGas) for an injury caused by an AmeriGas employee who was unloading empty propane tanks from King’s flatbed trailer at an AmeriGas facility. AmeriGas settled with King and cross-complained against Landstar for equitable indemnity. The trial court properly found that Landstar did not violate Federal Motor Carrier Safety Regulations regarding experienced drivers, and even if there had been a violation, it would not have been the proximate cause of the injury because the propane tanks were secure and stable during transit and when they arrived at the AmeriGas yard. (C.A. 4th, October 24, 2014.)

Colombo v. BRP US Inc. (2014) _ Cal.App.4th _ , 2014 WL 5472421: The Court of Appeal affirmed the trial court judgment for plaintiffs arising from serious injuries caused by a jet ski accident. One plaintiff suffered serious and permanent injury to her rectum, and the other plaintiff suffered serious and permanent injuries to her vagina when, because of operator error, they fell off a jet ski. Once in the water, both plaintiffs were injured when the powerful jet thrust from the watercraft ripped their flesh. The Court of Appeal affirmed a judgment for one plaintiff of $3.385 million in compensatory damages and $1.5 million in punitive damages, and a judgment for the other plaintiff of $1.063 million in compensatory damages and $1.5 million in punitive damages.

Fiorini v. City Brewing Company, LLC (2014) _ Cal.App.4th _ , 2014 WL 5743133: The Court of Appeal reversed the trial court’s ruling granting a motion for judgment on the pleadings in a case where the plaintiff alleged that negligence and strict liability caused the death of his 23-year-old son after he drank two 23.5-ounce cans of Four Loko that each contained as much alcohol as five to six 12-ounce cans of beer and as much caffeine as approximately four cans of Coca-Cola. Because the complaint did not allege that City Brewing (1) exercised any control over the cans of Four Loko after they were delivered to a regional distributor or (2) took an affirmative step to supply the Four Loko to Fiorini, City Brewing did not “furnish” the beverage to Fiorini, and the civil immunity in California’s dram shop statutes did not extend to City Brewing. (C.A. 5th, November 6, 2014.)

Honeycutt v. Meridian Sports Club, LLC (2014) _ Cal. App.4th _ , 2014 WL 5776200: The Court of Appeal affirmed the trial court’s motion for summary judgment for defendant in an action where plaintiff suffered a knee injury during a kickboxing class while being assisted by an instructor at defendant club. The trial court properly granted defendant’s motion for summary judgment, ruling that plaintiff had signed a valid waiver of liability, defendant did not act with gross negligence, and the doctrine of primary assumption of the risk barred relief. (C.A. 2nd, filed October 21, 2014, published November 6, 2014.)

Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) _ Cal.App.4th _ , 2014 WL 5499374: The Court of Appeal reversed the trial court’s rulings granting summary judgment for defendant. The Court of Appeal agreed that the trial court erred in ruling that (1) defendants had no duty and breached no duty to install a fall prevention device on the window from which the five-year-old plaintiff fell; and (2) the accident was not caused by defendants’ failure to install a fall prevention device on the window. (C.A. 4th, October 31, 2014.)

Monty A. Mcintyre

Below are some recent cases summarized by Monty A. McIntyre in his publication California Case Summaries Civil™, which provides organized succinct summaries, every other Monday, of every new published California civil case for only $7.99 a month. (Go to http://montymcintyre.com/mcintyre/.) Monty has been a civil trial lawyer since 1980, representing both plaintiffs and defendants in a broad variety of civil cases, and has more than 17 years of experience as a mediator and arbitrator. He has been a member of ABOTA since 1995, and is the past president of the San Diego County Bar Assn. and the San Diego Chapter of ABOTA. Monty mediates and arbitrates at ADR Services, Inc., where he handles cases in the areas of business, commercial, elder abuse, employment/wage & hour, insurance coverage/bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. To schedule a mediation or arbitration, contact his case manager Kelsey Carroll at ADR Services, Inc. at (619) 233-1323 or kelsey@adrservices.org.

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About the Author: Below are some recent cases summarized by Monty A. McIntyre in his publication California Case Summaries Civil™, which provides organized succinct summaries, every other Monday, of every new published California civil case for only $7.99 a month. (Go to http://montymcintyre.com/mcintyre/.) Monty has been a civil trial lawyer since 1980, representing both plaintiffs and defendants in a broad variety of civil cases, and has more than 17 years of experience as a mediator and arbitrator. He has been a member of ABOTA since 1995, and is the past president of the San Diego County Bar Assn. and the San Diego Chapter of ABOTA. Monty mediates and arbitrates at ADR Services, Inc., where he handles cases in the areas of business, commercial, elder abuse, employment/wage & hour, insurance coverage/bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. To schedule a mediation or arbitration, contact his case manager Kelsey Carroll at ADR Services, Inc. at (619) 233-1323 or kelsey@adrservices.org.

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