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McIntyre’s Civil Alert. Organized Succinct Summaries.

CALIFORNIA SUPREME COURT

Attorney Fees
Laffitte v. Robert Half International Inc. (2016) _ Cal.4th _ , 2016 WL 4238619: The California Supreme Court affirmed the Court of Appeal’s decision affirming the trial court’s order approving a settlement of an employment class action case for $19 million and awarding attorney fees of one-third of that amount, $6,333,333.33. The trial court’s award of an attorney fee calculated as a percentage of the settlement amount did not violate a holding in Serrano v. Priest (1977) 20 Cal.3d 25 because that discussion of how a reasonable attorney fee is calculated was made in connection with an award under the “private attorney general” doctrine. A percentage calculation with lodestar crosscheck is permitted in a common fund case. (August 11, 2016.)

Civil Procedure (Anti-SLAPP)
Baral v. Schnitt (2016) _ Cal.App.4th _ , 2016 WL 4074081: The California Supreme Court reversed the ruling of the Court of Appeal in a case addressing how courts should rule on an anti-SLAPP motion in a “mixed cause of action” that combines allegations of activity protected by the statute with allegations of unprotected activity. The California Supreme Court concluded that the Legislature used “cause of action” in a particular way in Civil Code section 425.16(b)(1) that targeted only claims based on the conduct protected by the statute. Section 425.16 is not concerned with how a complaint is framed or how the primary right theory might define a cause of action. While an anti-SLAPP motion may challenge any claim for relief founded on allegations of protected activity, it does not reach claims based on unprotected activity. Here is the process courts should follow in ruling on these motions: At the first step, the moving defendant bears the burden of identifying all allegations of protected activity and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected

CALIFORNIA COURTS OF APPEAL

Alternative Dispute Resolution (Davis- Stirling Act)
Rancho Mirage Country Club Homeowners Associations v. Hazelbaker (2016) _ Cal.App.4th _ , 2016 WL 4199091: The Court of Appeal affirmed the trial court’s award of $18,991 in attorney fees and costs of $572 to plaintiff homeowners association arising from a lawsuit to enforce a mediation agreement where defendants had agreed to modify their real property. The Court of Appeal ruled that the lawsuit to enforce the mediation agreement was an action to enforce the governing documents under the Davis-Stirling Common Interest Development Act (Civil Code section 5975), and plaintiff was entitled to recover its fees. The trial court properly found plaintiff was the prevailing party and did not abuse its discretion in determining the amount of fees and costs to be awarded. (C.A. 4th, August 9, 2016.)

Civil Procedure (998 offers, anti-SLAPP, MICRA, statute of limitations)

Aldana v. Stillwagon (2016) _ Cal.App.4th _ , 2016 WL 4131373: The Court of Appeal reversed the trial court’s order granting summary judgment to defendant on the basis that the one-year MICRA statute of limitations in Code of Civil Procedure section 340.5 barred plaintiff’s negligence action, arising from a traffic accident, filed 17 months after the accident. Following the California Supreme Court’s decision in Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, the Court of Appeal concluded that, although defendant’s status as a paramedic might demonstrate that he was a medical professional, the automobile collision was a “garden-variety” accident not resulting from the violation of a professional obligation but from a failure to exercise reasonable care in the operation of a motor vehicle. As a result, the two-year statute of limitations in Code of Civil Procedure section 335.1 applied, and plaintiff’s action was timely filed. (C.A. 2nd, August 3, 2016.)
Ignacio v. Caracciolo (2016) _ Cal.App.4th _ , 2016 WL 4131379: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to tax costs after plaintiff obtained a verdict of $70,000 after rejecting defendant’s Code of Civil Procedure section 998 offer to settle for $75,000. The trial court properly concluded that defendant’s settlement offer was invalid under section 998 and denied her the cost-shifting benefits of that statute, because the release defendant submitted to plaintiff as part of her settlement offer sought to release defendant and others from claims outside the scope of the personal injury action and rendered the offer invalid under section 998. (C.A. 2nd, August 3, 2016.)

Class Actions

Roberts v. United Healthcare Services (2016) _ Cal.App.4th _, 2016 WL 4150703: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend to a class action complaint alleging unfair competition, unjust enrichment and financial elder abuse arising from alleged misleading marketing materials regarding the availability of in-network urgent care centers. Disagreeing with Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 447-454 and Yarick v. PacifiCare of California (2009) 179 Cal. App.4th 1158, 1165-1167, the Court of Appeal ruled that the complaint was preempted by the preemption clause applicable to Medicare Advantage plans (42 U.S.C. section 1395w-26(b) (3)) and was also implicitly preempted by the requirement that the plan’s marketing materials and adequacy of plan coverage be preapproved by the Center for Medicare and Medicare Services. The claims were also subject to dismissal because plaintiff did not first exhaust his administrative remedies under the Medicare Act. (C.A. 2nd, August 4, 2016.)

Contracts

Watson Bowman Acme Corporation v. RGW Construction, Inc. (2016) _ Cal.App.4th _ , 2016 WL 4212124: The Court of Appeal affirmed the trial court’s order determining that defendant’s purchase order was ambiguous and allowing the jury to evaluate the conflicting parol evidence before deciding the meaning of the contract. However, the Court of Appeal reversed the trial court’s order denying plaintiff prejudgment interest further because it concluded that the price adjustment owed to plaintiff for the change in the order was sufficiently certain to meet the statutory requirements for an award of prejudgment interest. (C.A. 5th, August 9, 2016.)

Insurance

Ace American Insurance Company v. Fireman’s Fund Insurance Company (2016) _ Cal.App.4th _ , 2016 WL 4158868: The Court of Appeal reversed the trial court’s order sustaining a demurrer without leave to amend in an action by an excess carrier against the primary carrier for equitable subrogation and breach of the duty of good faith and fair dealing. The Court of Appeal concluded that, because the excess carrier alleged it was required to contribute to the settlement of the underlying case due to the primary carrier’s failure to reasonably settle the case within policy limits, the lack of an excess judgment against the insured in the underlying case did not bar an action for equitable subrogation and breach of the duty of good faith and fair dealing. (C.A. 2nd, August 5, 2016.)

Medical Malpractice

Borrayo v. Avery (2016) _ Cal.App.4th _, 2016 WL 4208070: The Court of Appeal reversed the trial court’s order granting summary judgment to defendant in a medical malpractice case. The trial court granted summary judgment after it sustained defendant’s objection to plaintiff’s expert declaration by an orthopedic surgeon in Mexico on the basis that plaintiff’s expert could not testify to the standard of care in the U.S. Because the locality factor for determining the standard of care had been abolished years ago in Sinz v. Owens (1949) 33 Cal.2d 749, 754, the Court of Appeal ruled that it was not unreasonable to extend the standard of care analysis across international boundaries. Defendant had not suggested that the standard of care in Mexico is higher than the standard of care in the United States. As the objecting party, defendant had the burden of proving that the standard of care was different in Mexico and he failed to do so. (C.A. 1st, August 10, 2016.)

Real Property

Walters v. Boosinger (2016) _ Cal.App.4th _ , 2016 WL 4257177: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend in a case alleging causes of action for quiet title and partition. The case was a dispute over ownership of real property between plaintiff, as the administrator of the estate of his father, and defendant who was the father’s former girlfriend, arising from a 2003 deed named the father and defendant as owners in joint tenancy of the property. Plaintiff’s father died in 2013. The Court of Appeal rejected plaintiff’s contention that a quiet title claim based on the theory that a deed is void ab initio is not subject to any statute of limitation and can be brought at any time. The trial court properly ruled that the quiet title cause of action was barred by the three year statute of limitation under Code of Civil Procedure section 338. The trial court also properly sustained the demurrer to the partition cause of action because plaintiff had no interest in the real property after the death of plaintiff’s father. (C.A. 4th, August 12, 2016.)
Yhudai v. Impac Funding Corporation (2016) _ Cal.App.4th _ , 2016 WL 4098719: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend to a complaint alleging the wrongful nonjudicial foreclosure sale of real property. The trial court properly sustained the demurrer because the assignment of the deed of trust was voidable, but not void. (C.A. 2nd, July 29, 2016.)

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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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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