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McIntyre’s Civil Alert. Organized Succinct Summaries.

CALIFORNIA SUPREME COURT
Attorneys (Anti-SLAPP)
Barry v. State Bar of California (2017) _ Cal.5th _, 2017 WL 56342: The California Supreme Court reversed the judgment of the Court of Appeal holding that, in the absence of subject matter jurisdiction, the trial court had no power to hear or decide an anti-SLAPP motion to strike under Code of Civil Procedure section 425.16. The California Supreme Court ruled that a court that lacks subject matter jurisdiction over a claim may grant an anti-SLAPP motion to strike and may award attorney fees and costs to the defendant. Because the court lacked subject matter jurisdiction, plaintiff could not show a probability of prevailing on the merits. Here is the procedural summary of the case: After the State Bar commenced disciplinary proceedings, plaintiff stipulated to violations of the rules of professional conduct and agreed to the recommended discipline. Plaintiff then filed a writ petition with the California Supreme Court, the court with jurisdiction over disciplinary proceedings, seeking to set aside the stipulation. The Supreme Court denied the petition and imposed the discipline. Plaintiff then filed this complaint against defendant in the Superior Court. (January 5, 2017.)

CALIFORNIA COURTS OF APPEAL
Arbitration
Hernandez v. Ross Stores (2017) _ Cal.App.5th _, 2016 WL 7131651: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration in a case where plaintiff filed a single-count representative action under the California Private Attorney General Act (PAGA), Labor Code section 2698 et. seq., alleging defendant had violated numerous Labor Code laws and seeking to recover PAGA civil penalties. The trial court properly denied the motion based upon Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348, 387. The PAGA claim was a representative action brought on behalf of the state that did not include individual claims. There were no individual claims or disputes that could be separately arbitrated. (C.A. 4th, filed December 17, 2016, published January 3, 2017.)

Civil Procedure (Anti-SLAPP)
Healthsmart Pacific v. Kabateck (2017) _ Cal.App.5th _, 2016 WL 7340044: In an action by plaintiffs against certain lawyers and their law firms for defamation and other causes of action arising from statements two of the lawyers made on television and radio programs about a pending lawsuit, the Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike under Code of Civil Procedure section 425.16. Standard of review: de novo. The Court of Appeal ruled that the action arose out of activity protected under the anti-SLAPP statute, and because the challenged statements were protected under the fair report privilege, plaintiffs did not establish a probability of success on the merits. (C.A. 2nd, filed December 19, 2016, published January 10, 2017.)
Silva v. See’s Candy Shops (2017) _ Cal.App.5th _, 2016 WL 7176684: The Court of Appeal affirmed in part and reversed in part the trial court’s orders granting summary judgment for defendant in an employment action alleging wage and hour violations brought in plaintiff’s individual capacity, on behalf of a class of See’s Candy employees, and on behalf of aggrieved workers under the Private Attorney General Act of 2004 (PAGA). Standard of review: de novo. The Court of Appeal ruled that the trial court erred in granting summary judgment with respect to individual claims alleged in the first and second causes of action because defendant did not move for summary judgment on those claims. The trial court properly entered summary judgment for defendant on all remaining claims including the PAGA cause of action and the class-certified claims (failure to properly pay wages based on defendant’s rounding and grace-period policies). (C.A. 4th, filed December 9, 2016, published January 5, 2017.)

Government
Cape Concord Homeowners Association v. City of Escondido (2017) _ Cal.App.5th _, 2017 WL 56336: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking a refund of sewer service fees under Government Code section 53082(b). The Court of Appeal ruled that section 53802 did not apply because the property was connected to the sewer system. Section 53082(c) imposes liability only where the premises is not connected to the sewer system. (C.A. 4th, January 5, 2016.)

Taxes
Swart Enterprises v. Franchise Tax Board (2017) _ Cal.App.5th _, 2017 WL 118040: In a case where plaintiff sought a refund of $1,106.71 (the minimum franchise tax of $800 plus interest and penalties) the Court of Appeal affirmed the trial court’s order granting summary judgment for plaintiff. Standard of review: de novo. The California franchise tax does not apply to an out-of-state corporation whose sole connection with California is a 0.2 percent ownership interest in a manager-managed California limited liability company (LLC) investment fund. Passively holding a 0.2 percent ownership interest, with no right of control over the business affairs of the LLC, does not constitute “doing business” in California within the meaning of Revenue and Taxation Code section 23101. (C.A. 5th, January 12, 2017.)

Torts
Bigler-Engler v. Breg, Inc. (2017) _ Cal.App.5th _, 2017 WL 65411: In an action alleging medical malpractice and intentional torts arising from the use of a cold therapy device after orthopedic surgery, the Court of Appeal granted a rehearing, depublished its earlier opinion dated October 28, 2016, and issued a new opinion. In this new opinion, the Court of Appeal came to the same conclusions as the original decision on most issues. However, it concluded that its original discussion of the interplay between MICRA and Proposition 51 was incorrect and ruled that a Proposition 51 apportionment should be applied first before determining whether the $250,000 MICRA cap needs to be applied. Defendant Oasis MSO, Inc. (Oasis) was liable for $130,000 after the Proposition 51 apportionment. Because this was below the MICRA $250,000 cap, that cap did not apply. Plaintiff’s 998 offer was ineffective because it failed to include an acceptance provision. The jury awarded $68,270.38 in economic compensatory damages and $5,127,950 in noneconomic compensatory damages to plaintiff, apportioned liability among the three defendants, and awarded punitive damages of $500,000 against defendant Dr. Chao (Chao) and $7 million against defendant Breg, Inc. (Breg). However, the jury’s verdict findings of intentional concealment against Breg and strict products liability against defendant Oasis were not supported by the evidence. This required reversal of the punitive damage award against Breg. The Court of Appeal also ruled that the noneconomic damages and punitive damages as to Chao (whose stipulated net worth was $3,411,577) were excessive, and those awards were reversed and remanded for a new trial unless plaintiff accepts reductions in those awards to $1,300,000 and $150,000. The decision discusses a plethora of attorney conduct, damages, malpractice, tort and trial issues (C.A. 4th, January 6, 2017.)

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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Filed Under: Featured StoriesPractice Management

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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