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California Civil Litigation

For California attorneys with a civil litigation practice. Summarizes and comments on recent California decisions concerning civil litigation.

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Last Entry: October 27, 2009 at 18:46:00

A Judgment Without Previous Notice of Lawsuit

Posted on October 27, 2009
I Was Informed There's a Judgment Against Me But I Never Heard of Any LawsuitIt's relatively unusual for a person who had no notice that they had been named as a defendant in a civil action to be informed that there is a civil judgment against them. Recently I prepared a general description of what a person who got that startling information might want to know...

Hospital's Suit For Reimbursement Is Not Preempted by ERISA

Posted on May 11, 2009
Court of Appeal Reverses a Judgment Sustaining a Demurrer by Blue CrossCoast Plaza Doctors Hospital v. Blue Cross of California (B205892, May 11, 2009)11 p.According to the allegations in the complaint, a patient checked into an out-of-network hospital for previously scheduled surgery...

Life Insurance is Not Covered by the Consumer Legal Remedies Act

Posted on April 20, 2009
Supreme Court Affirms Decision But Narrows the Holding From All Insurance to Just Life InsuranceFairbanks v. Superior Court (April 20, 2009, S157001)10 p.At the time that the Court of Appeal decision in Fairbanks came out I praised it for its thoroughness and suggested that the issue would not have to be revisited by the California courts anytime soon...

California Supreme Court Hears Hughes v. Pair

Posted on April 15, 2009
Oral Argument in Sexual Harassment Case Was Heard on April 7During its April 7th Oral Argument session the California Supreme Court heard arguments in the sexual harassment action Hughes v. Pair. In that action Suzan Hughes, the mother of a minor child whose trust was administered by Christopher Pair, sued Pair for sexual harassment under Civil Code section 51...

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California Supreme Court Reverses Patel Decision

Posted on January 27, 2009
Contract Was Enforceable Because Settled Law Provided a Time for PaymentPatel v. Liebermensch (December 22, 2008, S156797)9 p. decisionThe California Supreme Court unanimously reversed the Court of Appeal decision in Patel v. Liebermensch, agreeing with the trial court that the parties had entered into an enforceable contract...

Family Court to Remain Open in Riverside County

Posted on August 20, 2008
Dismissal of Misdemeanors Because No Courtroom Was Available is UpheldPeople v. Cole, Appellate Division, Riverside County (July 25, 2008, APP-004096)Civil procedure, in the form of civil trials, has been the intermittent collateral damage in the court congestion crisis in Riverside County...

What Do You Do If Opposing Counsel Inadvertantly Produces a Priviledged Document?

Posted on December 13, 2007
As Soon As You Realize What It Is - Stop Reading. Then Give It Back. Right Away.Rico v. Mitsubishi Motors Corporation (Dec. 13, 2007, S123808)16 p. opinionThe rule that the Supreme Court sets forth in this decision is not a complicated one. If a lawyer receives a document that clearly appears to be privileged and it is "reasonably apparent that the materials were provided or made available through inadvertence," he or she should examine the document no further than is essential to determine that the document is privileged...

Review Roundup III

Posted on December 11, 2007
Patel v. Liebermensch (S156797)I did not go out on any limbs when writing about this decision so you will have to take my word for it that I thought it was a close call. The Supreme Court will be addressing the question of whether the time and manner of payment are essential terms for a real estate purchase option contract...

Review Roundup II

Posted on December 07, 2007
Fairbanks v. Superior Court (S157001)When I wrote about this decision I praised it for its thoroughness. It was an issue of first impression but I found the Court of Appeal's four-part statutory interpretation very persuasive. I predicted that the Court of Appeal had resolved forever the question of whether insurance is covered by the Consumer Legal Remedies Act (CLRA)...

Review Roundup I

Posted on December 07, 2007
Hughes v. Pair (S157197)The Supreme Court has granted review in three of the cases that I have written about on this blawg. Its acceptance of Hughes v. Pair on November 28th is the one that I find satisfying.In a previous post I promised to explain why FEHA and Title VII case law should not be used to make decisions under Civil Code section 51...

Petitioning Activity Can Be the Essence of a Contract

Posted on November 28, 2007
Anti-SLAPP Motion Fails When Plaintiff Makes a Showing That the Petitioning Activity Was a Breach of ContractMidland Pacific Building Corp. v. King (11/28/07, 2d Civil No. B192017, Second Dist.)12 p. opinionRehearing OpinionA developer brought suit against a landowner for breach of contract and fraud...

Sad Song

Posted on October 30, 2007
Illegal and Legal Provisions of a Contract Are Too Intertwined to SeverChiba v. Greenwald (Oct. 16, 2007, B193173, Second Dist.)23 p. opinion (11 p. majority, 12 p. dissent)This case stands out primarily because it concerns the estate of singer-songwriter Elliott Smith...

California Trial Courts Have Inherent Power to Dismiss an Action

Posted on October 29, 2007
When a Plaintiff's Deliberate, Egregious Misconduct Has Made a Fair Trial Impossible, The Trial Court Has the Power to Impose a Terminating SanctionStephen Slesinger, Inc. v. The Walt Disney Company (Sept. 25, 2007, B178340, Second Dist.)54 p. opinionIn this case the Court of Appeal holds that "when a plaintiff's deliberate and egregious misconduct makes any sanction other than dismissal inadequate to ensure a fair trial, the trial court has inherent power to impose a terminating sanction...

Reliance Upon Statements by the DFEH Justify Equitable Relief From an Untimely Administrative Filing

Posted on October 29, 2007
Description of Conversations With DFEH Representatives Were Not Hearsay Because They Were Offered to Prove the Plaintiff's State of MindHolland v. Union Pacific Railroad Co. (July 30, 2007, certified for publication 8, 29, 2007, C052833, Third District)This post was on hold for quite a while for a reason that is now moot, this is as good a time as any to post it...

Back Again

Posted on October 29, 2007
The hiatus is over. In order to make sure that this blawg stays current and useful, I will be picking up with new cases. However, I will also be sprinkling in interesting cases that were published during the hiatus. This means that the cases will not be in strict chronological order for the next little while...

Hughes v. Pair - Part I

Posted on October 01, 2007
The Facts and The HoldingHughes v. Pair (Sept. 10, 2007, B194307, Second District)23 p. opinion (19 p. majority, 4 p. dissent)UPDATE: REVIEW GRANTED (The Supreme Court granted review on Nov. 28, 2007) (S157197)This is a problematic decision. I don't like to criticize the Court of Appeal, but in this decision I think that it missed a crucial distinction between employment sexual harassment actions under the FEHA and Title VII and the action created by Civil Code section 51...

A Minor Who Made a Statement to the Police that She Had Been Abused Was Protected by Absolute Litigation Privilege

Posted on September 30, 2007
Penal Code Section 11172 Liability for False or Reckless Reports of Child Abuse Applies Only to Third Parties and Not to the Alleged VictimChabak v. Monroy (Sept. 10, 2007, F049069, Fifth District)19 p. opinionA person cannot sue a minor for telling the police that the person had abused her...

Restitution Under UCL Is Not Limited to Direct Purchases

Posted on September 29, 2007
A Plaintiff Can Seek Restitution of Money That He Spent Because of Alleged Unlawful PracticeShersher v. Superior Court (Sept. 10, 2007, B195317, Second District)11 p. opinionPlaintiff Shersher brought a consumer action against Microsoft. He sought restitution...

Broad Definition of Joint Tortfeaser Used to Allocate Settlement Funds in Multiparty Construction Defect Cases

Posted on September 29, 2007
Nuisance Cannot Be Stated as a Separate Action If It Relies Upon the Same Facts as a Negligence Cause of ActionEl Escorial Owners' Association v. DLC Plastering, Inc. (Sept. 6, 2007, B173829, Second District)32 p. opinionThe El Escorial opinion provides an overview of the complexity of allocating settlement amounts as credits against damage awards in multiparty construction defect cases...

To Be a SLAPP Suit an Action Must Be Based On Protected Activity

Posted on September 29, 2007
The Intent Use of Protected Speech or Activity As Evidence Does Not Mean that a Cause of Action is a SLAPP Cause of ActionDepartment of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (Sept. 5, 2007, B194891, Second District)18 p...

An Insurance Clause Requiring Proration of an Unisured Motorist Claim Prevails Over A Policy With a Conflicting Clause

Posted on September 24, 2007
A Proration Clause Based Upon Insurance Code Section 11580.2(d) Prevents the Application Of An Excess Insurance Clause in Another Applicable PolicyAllstate Insurance Company v. Mercury Insurance Company (Sept. 5, 2007, B189977, Second District)7 p. opinionIt's always nice to see an insurance coverage case in which an insurance company (or in this case, two insurance companies) have acted appropriately...

Receiver Can Recover Punitive Damages on Behalf of Recivership Estate in Insurance Bad Faith Action

Posted on September 23, 2007
Brant Attorney Fees Can Be Recovered For Defending a Judgment on AppealBaron v. Fire Insurance Exchange (Sept. 4, 2007, H029830, Sixth Appellate District)18 p. opinionWhile an arbitration was in process between the two owners of a property, the property was extensively damaged by a fire...

Primary Assumption of the Risk Doctrine Applies to Noncontact Sports

Posted on September 22, 2007
A Golfer has No Duty to Protect Another Player From Ordinary NegligenceShin v. Ahn (Aug. 30, 2007, S146114, Supreme Court)24 p. opinionIn Shin the California Supreme Court addresses a question that it explicitly left open in its seminal primary assumption of the risk decision Knight v...

Residential Treatment Facility For Inmates Has No Duty to General Public

Posted on September 20, 2007
Public Policy of Encouraging Innovative Criminal Offender Release and Rehabilitation Programs Outweighs Public Interest in Safety From Violent AssaultRice v. Center Point, Inc. (Aug. 29, 2007, A114953, First District)11 p. opinionRice addresses the first element in a cause of action for negligence - duty...

Right to Contractual Attorney Fees is Independent of Cost Award

Posted on September 10, 2007
An Appellate Court's Order that Each Side Was to Bear Their Own Costs on Appeal Had No Effect Upon the Right to Contractual Attorney FeesButler-Ripp v. Lourdeaux (Aug. 28, 2007, A114667, First District, Division One)11 p. opinionThis action began as a commercial lease dispute between the appellants, Rosanna and Wallace Lourdeaux, and the respondents, Lili Butler-Rupp and Lili Butler-Rupp Studio, Inc...

No Insurance Coverage for Sexual Assault by Employee

Posted on September 10, 2007
Common Carrier Status Did Not Create Liability for Driver's ActionsR. A. Stuchbery & Others Syndicate 1096 v. Redland Insurance Company (Aug. 27, 2007, A114986, First District, Division Five)12 p. opinionThis is an insurance coverage case in which the general liability insurer (Stuchbery) defended and indemnified its insured and then brought this action against the issuer of the insured's business automobile policy for reimbursement or equitable contribution for the costs of the defense and indemnification...

Award Omitting Pain and Suffering Damages Was Inadequate as a Matter of Law

Posted on September 10, 2007
Serious Surgery Always Causes Pain and Suffering; If a Jury Finds that Defendant's Negligence Created the Need for Surgery, Then an Award That Does Not Include Them is InadequateDodson v. J. Pacific, Inc. (Aug. 28, 2007, B186416, Second District, Division Eight)9 page opinionThe plaintiff had surgery in which a herniated disc was removed and a metallic plate inserted...

Exclusion Clause Was Not Clear and Plain Enough to Defeat the Reasonable Expecations of the Insured

Posted on September 09, 2007
An Insurance Company That Had Not Provided Notice to the Insured Could Not Rely Upon an Unusually Broad Interpretation of an Exclusion ClauseEssex Insurance Company v. City of Bakersfield (Aug. 27, 2007, F051091, Fifth District)19 p. opinionIn this insurance coverage action the Court of Appeal reversed the summary judgment granted to Essex Insurance Company in a declaratory relief action...

No Anti-SLAPP When Court Filings Were Not the Gravamen of the Complaint

Posted on September 08, 2007
Anti-SLAPP Motion Was Improperly Granted Where the Protected Activity Was Incidental to Causes of ActionFreeman v. Schack (Aug. 27, 2007, D048583, Fourth Appellate District, Division One)21 p. opinionThe plaintiffs appealed from a judgment entered after the defendant's successful anti-SLAPP motion (Code of Civil Procedure section 425...

No Discovery of Reinsurance Information

Posted on September 08, 2007
Code of Civil Procedure Section 2017.210 Does Not Authorize Discovery of Reinsurance InformationCatholic Mutual Relief Society v. Superior Court (Aug. 27, 2007, S134545, Supreme Court)25 p. opinion (20 p. majority, 5 p. dissent)The question in this case was whether Code of Civil Procedure section 2017...

Component Manufacturer's Defense Not Established for Summary Judgment

Posted on September 07, 2007
The Component Manufacturer's Defense Bars a Strict Products Liability Claim, But the Manufacturer Had Not Met the Standard for Summary JudgmentGonzalez v. Autoliv Asp, Inc. (Aug. 27, 2007, B188829, Second Appellate District, Division Eight)15 page opinionSummary judgment for an airbag manufacturer of a strict products liability cause of action was reversed because the manufacturer had not established through undisputed facts that it was entitled to the component manufacturer's defense as a matter of law...