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McIntyre’s Civil Alert

Organized Succinct Summaries

CALIFORNIA COURTS OF APPEAL

Attorneys
Walker v. Apple, Inc. (2016) _ Cal.App.4th _ , 2016 WL 5404080: In a putative class action by plaintiffs against their former employer, the Court of Appeal affirmed the trial court’s order disqualifying plaintiffs’ counsel Hogue & Belong (the Firm). Automatic disqualification was required on the basis the Firm had a conflict of interest arising from its concurrent representation of the putative class in this case and the certified class in another wage-and-hour class action pending against Apple (Felczer v. Apple, Inc. (Super. Ct. San Diego County No. 37-2011-00102573-CU-OE-CTL)(Felczer)). The trial court properly concluded that to advance the interests of its clients in this case, the Firm would need to cross-examine a client in the Felczer class (the Walkers’ store manager) in a manner adverse to that client. (C.A. 4th, filed September 28, 2016, published October 28, 2016.)

Attorney Fees
Alki Partners v. DB Fund Services (2016) _ Cal.App.4th _ , 2016 WL 6156327: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant but reversed the trial court’s order awarding defendant attorney fees in an action by plaintiffs alleging breach of contract in the administration of a hedge fund. The summary judgment was affirmed because the undisputed material facts established the administrator did not breach the applicable contract. The attorney fee award, however, was reversed because the contractual language relied upon was a third-party indemnity provision that did not create a right to prevailing party attorney fees in litigation between the parties to the contract. (C.A. 4th, October 24, 2016.)

Civil Procedure (Anti-SLAPP, Statute of Limitations)
Anderson v. Fitness International (2016) _ Cal.App.4th _ , 2016 WL 6302109: In a personal injury action arising from a slip and fall in a fitness club shower, the Court of Appeal affirmed the trial court’s order granting summary judgment to defendant.
Defendant’s assertion of a release of liability as a complete defense to the negligence cause of action was sufficient to shift the burden to plaintiff to produce evidence showing that a triable issue of one or more material facts existed to preclude summary judgment. Plaintiff failed to do so. (C.A. 2nd, October 27, 2016.)

Debt Collection
Mealing v. Diane Harkey for Board of Equalization (2016) _ Cal.App.4th _, 2016 WL 6212457: The Court of Appeal affirmed the trial court’s order denying an ex parte application by a judgment creditor requesting an order under Code of Civil Procedure section 708.240(a) to prohibit defendant from making any payments to Diane Harkey to repay a loan she made to defendant. Under section 708.240(a), a judgment creditor may apply for an order restraining a third party who is indebted to a judgment debtor from making any payments to the judgment debtor. The trial court properly denied the application because Diane Harkey was not a judgment debtor, the judgment was against her husband Dan Harkey. (C.A. 4th, October 24, 2016.)

Employment
Cameron v. Sacramento Co. Employees' Retirement System (2016) _ Cal.App.4th _ , 2016 WL 6472100: The Court of Appeal affirmed the trial court’s judgment denying a writ petition seeking to overturn defendant’s denial of plaintiff’s application for a service-connected retirement. The Court of Appeal ruled that plaintiff’s application was untimely under Government Code section 31722 because he failed to show he was continuously disabled, within the meaning of Government Code sections 31722 and 31641(a), between the discontinuance of his service and the time he filed his application for serviceconnected disability retirement. (C.A. 3rd, November 2, 2016.)

Equity (Fiduciary Duty)
ZF Micro Devices v. TAT Capital Partners (2016) _ Cal.App.4th _ , 2016 WL 6520137: The Court of Appeal reversed the judgment for TAT Capital Partners (TAT) after a jury found that ZF Micro Devices’ (ZF) cross-complaint was barred by the four-year statute of limitations for breach of fiduciary duty. The Court of Appeal concluded that the tolling doctrine applies to both permissive and compulsory cross-complaints and therefore applied to ZF’s permissive cross-complaint. ZF’s cross-complaint related back to the date that TAT filed its complaint. The crosscomplaint having been timely filed, the court erred in submitting TAT’s statute of limitations defense to the jury, and the judgment for TAT was reversed. (C.A. 6th, November 3, 2016.)

Medical Malpractice (Statute of Limitations)
Drexler v. Petersen (2016) _ Cal.App.4th _ , 2016 WL 6407973: In a medical malpractice case alleging failure to timely diagnose and treat a brain tumor, the Court of Appeal reversed the trial court’s summary judgment for defendants on the basis of the expiration of the statute of limitations under Code of Civil Procedure section 340.5. When the plaintiff in a medical malpractice action alleges the defendant health care provider misdiagnosed or failed to diagnose a preexisting disease or condition, there is no injury for purposes of section 340.5 until the plaintiff first experiences appreciable harm as a result of the misdiagnosis, which is when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one. (C.A. 2nd, October 31, 2016.)

Probate
Estate of Dayan (2016) _ Cal.App.4th _ , 2016 WL 6520113: The Court of Appeal affirmed the trial court’s ruling that defendant owned a one-third interest in commercial real property and its ruling denying plaintiff’s judgment on the pleadings motion claiming that defendant violated the will’s no contest clause when he opposed a Probate Code section 850(a)(2) petition regarding the commercial real property. (C.A. 2nd, November 3, 2016.)

Real Property
Nellie Gail Ranch Owners Association v. McMullin (2016) _ Cal. App.4th _ , 2016 WL 5719712: The Court of Appeal affirmed the trial court’s judgment for plaintiff, following a bench trial, quieting title and compelling defendants to remove a retaining wall and other improvements they built without plaintiff’s approval on more than 6,000 square feet of common area that plaintiff owned adjacent to defendants’ property. (C.A. 4th, filed October 3, 2016, published October 27, 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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