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California Case Summaries. New California Civil Cases.

CALIFORNIA SUPREME COURT

Elections

Patterson v. Padilla (2019) _ Cal.5th _ , 2019 WL 6207611: The California Supreme Court exercised its original jurisdiction and granted an emergency petition for a writ of mandate to forbid respondent from enforcing the recently enacted Presidential Tax Transparency and Accountability Act (the Act; Elections Code, section 6880 et seq.).1 Elections Code sections 6883 and 6884 purport to make the appearance of a “recognized” candidate for president on a primary ballot contingent on whether the candidate has made the disclosures specified by the Act. The California Supreme Court ruled that this additional requirement, however, is in conflict with the California Constitution’s specification of an inclusive open presidential primary ballot in article II, section 5, subdivision (c) of the California Constitution. (November 21, 2019.)

Insurance

Wishnev v. The Northwestern Mutual Life Ins. Co. (2019) _ Cal.5th _ , 2019 WL 5996921: Answering a question posed by the Ninth Circuit Court of Appeals, the California Supreme Court ruled that the provision in Civil Code section 1916–2, prohibiting lenders from assessing compound interest unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith, does not apply to lenders2 exempt under California Constitution, article XV. (November 14, 2019.)

CALIFORNIA COURTS OF APPEAL

Arbitration

Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) _ Cal.App.5th _ , 2019 WL 5956672: The Court of Appeal affirmed the trial court’s orders compelling arbitration and confirming the arbitration award as a judgment. The arbitration award found for defendant, ruling that defendant was not liable for wire transfers of $638,400 of plaintiff’s funds that was made following the agreed wire fund procedures.3 The Court of Appeal ruled that plaintiff forfeited its arguments about procedural unconscionability by not raising them at the initial court hearing. The Court of Appeal rejected plaintiff’s arguments that there was substantive unconscionability. Finally, the trial court properly denied plaintiff’s motion to vacate the arbitration award and granted defendant’s motion to confirm the award. (C.A. 6th, November 13, 2019.)

Attorney Fees

Highland Springs Conference etc. v. City of Banning (2019) _ Cal.App.5th _ , 2019 WL 6208344: The Court of Appeal reversed the trial court’s 2017 orders awarding two plaintiffs $80,000 each in attorney fees (instead of the fees of $446,710 and $216,545 requested by plaintiffs) after they successfully amended a judgment to add a new judgment debtor under an alter ego theory. The Court of Appeal ruled that the fees plaintiffs incurred in pursuing

their alter ego motion were prejudgment fees incurred in obtaining the February 8, 2017, judgment; so the fee motions were governed by Rules of Court, Rule 3.1702(b), not Rule 3.1702(c)(1) or the Enforcement of Judgments Law (the EJL; Code of Civil Procedure, section 680.010 et seq.). The Court of Appeal remanded the matter for the trial court to redetermine the amounts of fees to award each plaintiff under Code of Civil Procedure section 1021.5, based on all of the fees each plaintiff incurred in pursuing the alter ego motion, without applying the EJL’s two-year time limitation. (C.A. 4th, November 21, 2019.)

Attorneys

Sprengel v. Zbylut (2019) _ Cal.App.5th _ , 2019 WL 4927194: The Court of Appeal affirmed the trial court’s order granting defendants’ motion for summary judgment against plaintiff’s complaint alleging legal malpractice in representing a limited liability company that plaintiff owned a 50% interest in. Plaintiff lacked standing because her claims were derivative not direct. Shareholders do not have a direct ownership interest in company assets, so the use of company funds to pay legal fees could not cause plaintiff a direct injury. Moreover, the representation of the limited liability company did not create an attorney-client relationship with plaintiff. (C.A. 2nd, filed September 10, 2019, published October 7, 2019.)

Civil Procedure

Litinsky v. Kaplan (2019) _ Cal.App.5th _ , 2019 WL 4894225: The Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion to plaintiff’s complaint alleging malicious prosecution and intentional infliction of emotional distress. Plaintiff was a defendant in an earlier action brought by defendant on behalf of her client. After the dismissal of that case, plaintiff filed this action. Because the claims in this action arose from the earlier lawsuit, they arose from protected activity. Plaintiff failed to show a probability of prevailing on her claims. The claim for intentional infliction of emotional distress was precluded by the litigation privilege (Civil Code, section 47). The claim for malicious prosecution could not succeed because defendant had probable cause, based upon the statements of her client, to prosecute the earlier lawsuit against plaintiff. While the evidence from defendant’s client was contradicted by testimony from the opposing party and some third parties, it was not indisputably false. Faced with the choice of accepting the version of events presented by her client or the version described by the opposing party, defendant appropriately opted to continue advocating for her client. (C.A. 2nd, October 4, 2019.)

Southwestern Law School v. Benson (2019) _ Cal.App.5th Supp. _ , 2019 WL 6033847: The Appellate Department of the Los Angeles Superior Court reversed the trial court’s order denying defendant’s motion to dismiss under Code of Civil Procedure section 399(a) and the later judgment entered against defendant. Plaintiff sued defendant for failure to pay her student loans. The trial court granted defendant’s motion to transfer the case from Los Angeles to Ventura County. Although served with a minute order indicating the motion was granted, plaintiff did not pay the costs and fees within 30 days. The Court of Appeal ruled that the mailing of a minute order to the parties stating a transfer motion was granted was sufficient to provide service of notice subjecting the action to dismissal under section 399(a) due to nonpayment of costs and fees within 30 days. The trial court erred in denying defendant’s motion to dismiss. (Appellate Department of the Los Angeles Superior Court, November 14, 2019.)

Evidence

Berroteran v. Superior Court (2019) _ Cal.App.5th _ , 2019 WL 5558830: The Court of Appeal granted a petition for writ of mandate directing the trial court to enter a new order denying real party in interest Ford Motor Company’s motion in limine excluding the videotaped deposition testimony of nine of Ford’s employees and former employees, and also directing the trial court to reconsider the admissibility of documentary evidence that the trial court may have excluded because it found the depositions inadmissible. Plaintiff’s first amended complaint alleged causes of action for multiple counts of fraud, negligent misrepresentation, violation of the Consumers Legal Remedies Act (Civil Code, section 1750 et seq.), and violation of the Song-Beverly Consumer Warranty Act (id., section 1790 et seq.). The Court of Appeal disagreed with Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543 to the extent it espoused a blanket proposition that a party has a different motive in examining a witness at a deposition than at trial. The Court of Appeal ruled that the testimony of the nine witnesses was admissible because, in the earlier actions, Ford had the right and opportunity to cross-examine its employees and former employees with a similar motive and interest as it would have in the instant case. Each case, including the present one, concerns Ford’s model 6.0-liter diesel engine, the engine’s alleged deficiencies, Ford’s alleged knowledge of those deficiencies, and Ford’s strategy regarding repairing the engines. While a party’s motive and interest to cross-examine may potentially differ when the prior questioning occurs in a pre-trial deposition, Ford failed to demonstrate any such different motive or interest here. (C.A. 2nd, October 29, 2019.)

Insurance

Miller Marital Deduction Trust v. Zurich American Ins. Co. (2019) _ Cal.App.5th _ , 2019 WL 5304862: The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike (Code of Civil Procedure, section 425.16) a state court complaint alleging breach of contract and bad faith as a result of defendant’s refusal to appoint Cumis counsel to defend additionally named insureds in a counterclaim filed in a separate federal action regarding environmental contamination that originated from a dry cleaning business. The Court of Appeal disagreed with the trial court’s finding that the action arose out of protected activity. Not all attorney conduct in connection with litigation is protected by section 425.16. What gave rise to liability was not the fact of counsels’ communications, but that defendant allegedly denied plaintiffs the benefit of panel counsel’s independent professional judgment in rendering legal services to them. The Court of Appeal ruled that the anti-SLAPP statute did not apply to the cause of action for breach of implied covenant of good faith and fair dealing. (C.A. 1st, October 21, 2019.)

Torts

Dobbs v. City of Los Angeles (2019) _ Cal.App.5th _ , 2019 WL 5206043: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in a case where plaintiff alleged she was injured by a dangerous condition after she walked into a round concrete pillar (a bollard) that was 17.5 inches wide and 17.5 inches tall and used to protect the Los Angeles Convention Center from car bombs. The trial court properly granted summary judgment on the basis of design immunity. Discretionary approval need not be established with testimony of the people who approved the project. Testimony about the entity’s discretionary approval custom and practice can be proper even though the witness was not personally involved in the approval process. The trial court properly found the exercise of approval authority was reasonable. (C.A. 2nd, October 16, 2019.)

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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