Andrea Rice weekly blog

LAW OFFICES
OF
ANDREA LYNN RICE

Appellate Attorney
A Professional Corporation
12100 Wilshire Boulevard, Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785

LIABILITY UPDATE
February 1, 2008

In Cold Creek Compost, Inc. v. State Farm Fire and Casualty Company 2007 Daily Journal D.A.R 17187, the First Appellate District of the California Court of Appeal stated:

Plaintiffs Cold Creek Compost, Inc. et al. (hereafter collectively Cold Creek) appeal from the judgment entered in favor of defendant State Farm Fire and Casualty Company (State Farm) after State Farm’s motion for summary judgment was granted in an insurance coverage dispute. The primary issue presented is whether the pollution exclusion in the policies bars coverage for liability for offensive and injurious odors emanating from a compost facility and spreading over a mile away. We conclude that the exclusion applies and affirm the judgment for State Farm.

Cold Creek operated a facility in Mendocino County that composts organic materials. Cold Creek was insured by State Farm during the relevant period under a business policy and a commercial liability umbrella policy. In June 1998, individuals owning or residing in properties in the vicinity of the facility filed a mandate petition and nuisance complaint against Cold Creek. The nuisance cause of action alleged that Cold Creek had imported and stored on its property agricultural waste materials, and that the composting operations caused “foul and noxious odors, disruptive noise, polluting discharge of materials, excessive dust and truck traffic, and visual blight.”

The mandate petition was severed from the nuisance claim and tried first to the court. The court denied the petition in October 2000. While the court had the petition under submission, Cold Creek tendered its claim for defense and indemnification to State Farm. State Farm initially advised Cold Creek that it would provide a defense under a reservation of rights, but subsequently told Cold Creek in August 2001 that it would reimburse Cold Creek’s litigation expenses in connection with the damages claim in the lawsuit, but that it declined to pay the mandate portion. The nuisance claim proceeded to trial, and the jury rendered special verdicts awarding five individual plaintiffs damages totaling $125,000 for “[d]iscomfort, annoyance, inconvenience or other non-economic losses.” The jurors found that Cold Creek had created “a condition that was harmful to health, or . . . offensive to the senses, or . . . an obstruction to the free use of property” that could be abated and that interfered with the plaintiffs' use or enjoyment of their land.

In May 2004, State Farm advised Cold Creek that it was withdrawing its defense of the action, and refusing to indemnify Cold Creek for its liability in the case. In March 2005, Cold Creek sued State Farm for failure to defend and indemnify in the lawsuit.

State Farm moved for summary judgment, arguing that the pollution exclusion foreclosed indemnity coverage for damages to the extent that the damages were awarded for odor and dust, and that damages awarded for noise were not covered by the policies irrespective of the exclusion. Cold Creek argued that the damages were for “bodily injury,” “property damage,” or “personal injury” under the policies, and were not subject to the pollution exclusion. Each side cited the decision in MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635 (MacKinnon), in support of its position. The court granted State Farm’s motion for summary judgment, finding that the pollution exclusion was controlling, a ruling that Cold Creek appealed and the Court of Appeal affirmed.

The pollution exclusion provided in part: “[T]his insurance does not apply: “[¶] . . . [¶] “6. to any: “a. bodily injury, property damage, personal injury or advertising injury arising out of the actual, alleged or threatened discharge, seepage, migration, dispersal, spill, release or escape of pollutants . . .” “Pollutants” were defined in the policy to mean “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.”

The appellate court’s analysis was governed by MacKinnon, supra, which interpreted a pollution exclusion identical in material respects to the one here. The issue in MacKinnon was whether the exclusion applied to exclude injury to a tenant from a landlord’s allegedly negligent use of pesticides on his property. The court held that the exclusion did not apply because it did not “plainly and clearly exclude ordinary acts of negligence involving toxic chemicals such as pesticides.”

The decision in MacKinnon supports State Farm here. The odors emanating from Cold Creek’s facility were unquestionably an “impurity, something objectionable and unwanted” in the air where the . . . plaintiffs lived; the odors “polluted” the air, as the term “pollute” is commonly understood. In the ordinary and popular sense of the words of the pollution exclusion, the odors were “discharged” and “released” by the composting and “escaped” from the facility. The odors spread a mile and a half to the plaintiffs' homes—a “substantial dissemination” to the point of “dissipation and dilution” ordinarily understood as a “dispersal of pollutants” into the environment. The Preserve II plaintiffs did not suffer a “localized toxic accident” like the one in MacKinnon; they were harmed by a persistent by-product of Cold Creek’s business operations, what MacKinnon called “traditional environmental industrial pollution.” . . . In Garamendi v. Golden Eagle Ins. Co. (2005) 127 Cal.App.4th 480, 486 (Garamendi), the court held that, “unlike the residential use of a pesticide for the purpose of killing insects, the widespread dissemination of silica dust as an incidental by-product of industrial sandblasting operations most assuredly is what is ‘commonly thought of as pollution’ and ‘environmental pollution’ ” under the reasoning of MacKinnon. Similarly here, we conclude that the widespread dissemination of offensive and injurious odors from a commercial compost facility is “environmental pollution” under MacKinnon, and thus excluded from coverage by the pollution exclusion in the policies.

The court rejected Cold Creek’s argument that compost odors do not qualify as a “pollutant” because they “do not pose a significant health threat or cause serious injuries.” “[O]dors in general, and compost odors in particular, are recognized as pollutants under California law. Health and Safety Code section 39013 defines an ‘air contaminant’ or ‘air pollutant’ to include, among other things, ‘fumes, gases [and] odors’ discharged or released into the environment. . . . Compost odor is thus regulated by air pollution officials as an air pollutant in California. . . .”

MacKinnon identified a “plain meaning” of the pollution exclusion that an “ordinary layperson would adopt,” namely, that it applied to “events commonly thought of as pollution, i.e., environmental pollution.” . . . Because that interpretation was reasonable and because it militated in favor of coverage for the loss in MacKinnon, the court did not need to decide whether there were other reasonable interpretations of the exclusion. . . . Here, because the interpretation MacKinnon identified would bar recovery, other reasonable interpretations must be entertained. However, none has been established. Like any layperson, Cold Creek would be deemed to read the exclusion as applying to environmental pollution of the sort that occurred here. Cold Creek has identified nothing in the language of the exclusion, or in the nature of its business, the materials it handles, or the laws under which it operates, that would support any other reasonable interpretation.

----Andrea Lynn Rice

Andrea Rice Blog January 25th, 2008

LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
www.andreariceesq.com
LIABILITY UPDATE
January 25, 2008

In Cruz v. Ayromloo 2007 Daily Journal D.A.R 13358, the Second Appellate District of the California Court of Appeal held that a trial court did not abuse its discretion in awarding higher fees than allowed for in the Los Angeles Superior Court guidelines for contested contract cases.

Thirty-two tenants sued their former landlord, Shawn Ayromloo (“Ayromloo”). The tenants prevailed on multiple causes of action stemming from Ayromloo’s wrongful refusal to allow the tenants to return to their apartments after the City of Los Angeles evacuated them because the building was unsafe. All of the tenants prevailed on their claims for forcible detainer, wrongful eviction, and negligent infliction of emotional distress.

Four of the thirty-two tenants who prevailed against Ayromloo on their breach of contract and other claims had written leases and are the plaintiffs in this case. These written leases included a contractual provision which allowed for the recovery of attorneys’ fees to the prevailing party in any civil action “in connection with” the lease. Plaintiffs made a motion for attorneys’ fees pursuant to their leases with defendant. The amount of fees sought was $413,306. Plaintiffs had already excluded from their claims attorneys’ fees for all work which applied exclusively to other families or units. For example, plaintiffs excluded time spent on interrogatory responses for other families and time spent preparing for trial and for trial time regarding these other families’ issues.

Ayromloo conceded that plaintiffs were entitled to attorneys’ fees under Civil Code section 1717 but only for fees incurred litigating the contract causes of action. He challenged the reasonableness of the requested fees, noting the amount sought was 131 times the Superior Court’s guidelines for fee awards in contract cases. Moreover, he argued plaintiffs could not recover fees counsel incurred in representing the other tenants who did not have written leases containing the attorneys’ fees clause. The appellate court rejected each of these arguments.

The court observed that Los Angeles Superior Court Rule 3.2 provides that its fee guidelines apply when a contract provides for reasonable attorneys’ fees “unless otherwise determined by the court[.]” “[J]udges are free to depart from its provisions whenever the interests of justice require[.] [Citations.]” Moreover, “[t]o the extent a local rule conflicts with a state statute, the rule is invalid. Citations.]” “ ‘[T]he determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court. . . .’ ” “ ‘The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ ”

Here, the trial court permissibly departed from the guidelines and based its fee award on the “lodestar” method of calculating attorneys’ fees. Civil Code section 1717 authorizes the trial court to award reasonable attorneys’ fees “[i]n any action on a contract, where the contract specifically provides” for attorneys’ fees, “which are incurred to enforce that contract [.]” Also, Civil Code section 1717 mandates reasonable attorneys’ fees to be “fixed by the court[.]” Here, the trial court awarded fees consistent with Civil Code section 1717. Civil Code section 1717 permitted the trial court to award “reasonable” attorneys’ fees incurred “in connection with” the lease at issue in this case.

The court rejected the landlord’s contention the trial court abused its discretion because the fee award was higher than the overall damages awarded to plaintiffs. “It is not uncommon to award attorneys’ fees in an amount higher than the total damages awarded to a plaintiff or plaintiffs in a particular case. [Ayromloo] cites no authority for the proposition an award of attorneys’ fees must always be less than the award of damages in a given case, and we are aware of none.”

The landlord also contended that the plaintiffs were only entitled to the attorneys’ fees incurred in litigating the contract cause of action for return of their security deposit. The court disagreed, pointing out that “[t]he attorney’s fees clause in a contract may be broad enough to cover tort as well as contract causes of action. [Citations.]” “ ‘If a contractual attorney fee provision is phrased broadly enough, . . . it may support an award of attorney fees to the prevailing party in an action alleging both contract and tort claims. . . .’ ” (Santisas v. Goodin (1998)] 17 Cal.4th 599.)

Here, the broad language of the attorneys’ fees clause in the lease agreement covered all fees in any civil action stemming from the lease. The attorneys’ fees clause in the lease provided, “If civil action is instituted in connection with this Agreement, the prevailing party shall be entitled to recover court costs and any reasonable attorney’s fees.” The underlying civil action encompassed both breach of contract and tort causes of action arising from the tenants’ leases with [defendant]. Therefore, the trial court did not have to base its award solely on breach of contract damages because the lease contemplated recovery of attorneys’ fees for all claims in any civil action in connection with the lease. Apportionment of fees for the breach of contract and tort causes of action was thus unnecessary because the broad language of the attorney fee clause in the contract permitted recovery of attorneys’ fees for breach of contract or any other claim asserted in connection with the lease.

Defendant was equally unsuccessful in arguing that the plaintiffs could not recover the fees that their counsel incurred in representing the other tenants who did not have written leases containing the attorneys’ fees clause. “Allocation of fees incurred in representing multiple parties is not required when the liability of the parties is ‘so factually interrelated that it would have been impossible to separate the activities . . . into compensable and noncompensable time units. [Citation.]’ In the present case, the trial court reasonably found the tenants’ various claims were ‘ “ ‘inextricably intertwined’ ” [Citation], making it “impracticable, if not impossible, to separate the multitude of conjoined activities into compensable or noncompensable time units. [Citation.]” ’ ”

Finally, we find it important to emphasize something we are not deciding in this case. [Plaintiffs] elected not to appeal the trial court’s ruling the fee award should be reduced in part because [plaintiffs’] counsel had agreed to provide representation on a “pro bono” basis. This court’s affirmance of the judgment should not be construed as signifying our approval of this particular element of that judgment. We do not find it self-evident a law firm’s commendable willingness to provide its services on a pro bono basis to low income clients should necessarily justify a diminishment in the fee award when that pro bono representation proves successful. Because [plaintiffs] did not directly challenge the court’s decision to reduce the fee award based on the pro bono nature of the litigation, we had no reason to invite the parties to brief the issue. Our research indicates courts reduce a fee award to adjust, for example, for duplicative work, for lack of success on certain issues, or the like. However, our research uncovered no case in which a trial court reduced a fee award simply because of the “pro bono type of work” involved. Moreover, in the analogous situation of contingent fee and legal aid lawyers—where again the clients are not responsible for paying legal fees out of their own pockets—the majority of courts have approved awards at a full level of “reasonable” fees.

----Andrea Lynn Rice

January 18th blog, Andrea Rice Los Angeles Attorney

LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785

LIABILITY UPDATE
January 18, 2008

In Zipusch v. LA Workout, Inc. 2007 Daily Journal D.A.R 15353, the Second Appellate District of the California Court of Appeal held that failure to inspect or maintain equipment is not an inherent risk of exercising at a health club.

Yoko Zipusch (Zipusch) signed a “Membership Agreement” with LA Workout, the predecessor-in-interest of defendant Northridge GG, Inc. (Northridge). The double-sided membership agreement contained a readily identifiable assumption of risk provision located at the bottom of the front page which states: “The use of the facility at LA Workout naturally involves the risk of injury to yourself or your guest, whether you or someone else cause [sic] it. As such you understand and voluntarily accept this risk and agree that LA Workout will not be liable for injury, including without limitation, personal, bodily or mental injury, economic loss or damage to you, your spouses [sic], guests, unborn child, or relatives resulting from the negligence or other acts of anyone else using LA Workout. If there is any claim by anyone based on injury loss or damage described here, which involves you or your guest, you agree to (1) defend LA Workout against such claims and pay LA Workout for all expenses relating to the claim and (2) indemnify LA Workout for all liabilities to you, your spouse, guests, relatives, or anyone else, resulting from such claims. The member or guest will defend and indemnify LA Workout for any negligence EXCEPT the sole negligence of the club. . . .”

Zipusch allegedly sustained injuries when her foot became stuck to a sticky substance on a treadmill at the health club, causing her to lose her balance. Zipusch filed a complaint against LA Workout for general negligence and premises liability alleging its failure to inspect and maintain the exercise equipment resulted in the sticky substance remaining on the treadmill, causing her to lose her balance when her foot became stuck to it. Northridge answered the complaint and later moved for summary judgment. The trial court granted summary judgment in favor of Northridge based on the assumption of risk provision of the membership agreement, finding that while the release did not bar all claims arising during use of the health club, it did bar all claims involving third party conduct. The trial court found Zipusch had presented no evidence establishing the sticky substance materialized on the treadmill by non-third party conduct. Zipusch appealed, and the Court of Appeal reversed.

The appellate court found that the assumption of risk provision of LA Workout’s membership agreement contemplated two types of potential injuries: injuries to a member caused by others, and injuries to others caused by a member. “The provision begins with an introductory sentence warning about the inherent risks of using an exercise facility. Read as a whole, the most reasonable interpretation of the risk provision is the parties’ intention to exculpate the health club from injuries, whether self-inflicted or caused by other members, sustained from the inherent risks of exercising at a health club. For example, the health club would be exculpated if a member, either negligently or non-negligently, dropped a heavy weight on himself or another member. However, the risk section does not contemplating exculpating the health club from its own negligence. Thus, as discussed more fully below, the trial court improperly granted summary judgment.”

The court pointed out that in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, a health club member sustained injuries while adjusting an overhead television in preparation for using an elliptical exercise machine. Though repositioning a television is arguably unrelated to the inherent risks associated with exercising, the court affirmed summary judgment because the plaintiff had signed an unambiguous release exculpating the health club from all injuries sustained while on the premises irrespective of whether the injury related to exercise. Similarly, in Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, a health club member who signed a broad release and waiver of liability and later slipped and fell on algae growing on a swimming pool deck, was barred from bringing a general negligence claim against the health club, despite the court’s determination the risk of algae growing on a pool deck was not an inherent risk of swimming. “Provided a release is clear, explicit and comprehensible, guaranteeing both parties contemplated the redistribution of risk, a release can relieve a health club of due care it otherwise would be obligated to provide.”

The court observed, however, if a release is ambiguous, and it is not clear the parties contemplated redistributing the risk causing the plaintiff’s injury, then the contractual ambiguity should be construed against the drafter, voiding the purported release. Such was the case here. “The assumption of risk provision does not release LA Workout or Northridge from its own negligence. After an introductory sentence, which alludes to the inherent risks of exercising at a health club, the assumption of risk provision contemplates two types of injuries: injuries to the member caused by others, and injuries to others caused by the member. Zipusch agreed to exculpate LA Workout from the former type of injury and indemnify for the latter type. The distinction between the exculpatory and the indemnification clauses is important. . . . [T]he exculpatory clause precludes lawsuits against LA Workout from unpreventable injuries caused by third party conduct in the natural course of exercising. The indemnification clause obligates a third party who causes injury to reimburse LA Workout for its share of any resulting judgment. In other words, the exculpatory clause concerns the scope of lawsuits which can be brought against LA Workout while the indemnification clause concerns responsibility for paying damages arising from those lawsuits.”

The assumption of risk provision does not clearly, explicitly and comprehensibly exculpate LA Workout or Northridge from its own negligence. Accordingly, it was improper for the trial court to rule the assumption of risk provision barred Zipusch’s negligence and premises liability action.

The court acknowledged that, even absent a contractual release from liability, Northridge nonetheless could prevail on summary judgment if Zipusch’s alleged injury was an inherent risk of exercising at a health club. “As our Supreme Court has made clear [in Knight v. Jewett (1992) 3 Cal.4th 296], ‘resolution of the question of the defendant’s liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm.’ Rather than examining the ‘plaintiff’s subjective knowledge or appreciation of the potential risk[,]’ the inquiry depends upon whether the defendant breached its general duty ‘to use due care not to increase the risks to a participant over and above those inherent in the sport.’ . . .”

In determining whether the accident was an inherent risk of exercising at a health club, the court turned “to the record and common sense.” “Generally, defective or unnecessarily dangerous equipment is not considered an inherent risk of a sport. This is entirely sensible. . . . [¶] Here [however], Zipusch alleges the health club negligently inspected and maintained its exercise equipment, allowing a risk to remain for an unreasonable amount of time. . . . [W]e find nothing to support the contention the negligent inspection and maintenance of exercise equipment is an inherent risk of exercising at a health club. Unlike those who run outside on cracked sidewalks speckled with gum, Zipusch and other health club members pay dues in exchange for access to a safe and well-maintained exercise environment. Instead of chilling exercise at a health club, reasonably inspecting and maintaining exercise equipment should have the opposite effect. Further, Northridge acknowledges it already monitors and cleans the exercise facility. Accordingly, we find the negligent inspection and maintenance of exercise equipment is not an inherent risk of exercising at a health club.”
----Andrea Lynn Rice

Golf Course Injury

LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785

www.andreariceesq.com

LIABILITY UPDATE
January 11, 2008

In Shin v. Ahn 2007 Daily Journal D.A.R 13411, the California Supreme Court held that the doctrine of primary assumption of the risk applies to non-contact sports such as golf and that being struck by a carelessly hit ball is an inherent risk of the sport.

Plaintiff and defendant were playing golf with Jeffrey Frost at the Rancho Park Golf Course in Los Angeles. Defendant, the first of the threesome to complete the 12th hole, went to the 13th tee box. Plaintiff and Frost then finished putting and followed him. Frost took the cart path to the 13th tee box, which placed him perpendicular to, or slightly behind, defendant and to his right. Plaintiff took a shortcut, which placed him in front of defendant and to his left. Plaintiff stopped there to get a bottle of water out of his golf bag and to check his cell phone for messages. He did so even though he knew (1) that he was in front of the tee box, (2) that defendant was preparing to tee off, and (3) that he should stand behind a player who was teeing off. Defendant inadvertently “pulled” his tee shot to the left, hitting plaintiff in the temple. When struck, plaintiff was 25 to 35 feet from defendant, at a 40 to 45 degree angle from the intended path of the ball. Plaintiff claims his injuries were “disabling, serious, and permanent. . . .”

When plaintiff sued for negligence, defendant sought summary judgment, relying on the primary assumption of risk doctrine. The trial court denied summary judgment. However, the trial court later reversed itself, concluding that triable issues remained.

The Court of Appeal had affirmed, holding that the primary assumption of risk doctrine did not apply. “This holding was contrary to that in Dilger v. Moyles (1997) 54 Cal.App.4th 1452 (Dilger), in which a different district of the Court of Appeal held that being struck by a ball is a risk inherent in golf and that the primary assumption of risk doctrine applied to the case of a defendant whose errant shot struck another golfer playing a different hole. The Court of Appeal in this case distinguished Dilger on the ground that the golfer whose ball struck the plaintiff in that case was playing in a different group. Here, plaintiff and defendant were playing together. The Court of Appeal applied general negligence principles and concluded that defendant breached a general duty of care owed to a member of his own playing group by failing to ascertain where he was before teeing off. Because it also determined that plaintiff’s conduct raised issues of comparative negligence, it remanded the matter for trial on apportionment of fault.” The California Supreme Court granted review and reversed the decisions of the trial court and Court of Appeal.

The Court observed that generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112.) California’s abandonment of the doctrine of contributory negligence in favor of comparative negligence (Li v. Yellow Cab (1975) 13 Cal.3d 804) led this court to revisit the assumption of risk doctrine in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight).

In Knight, supra, 3 Cal.4th 296, the plurality noted that there are two types of assumption of risk: primary and secondary. Under the primary assumption of risk doctrine, the defendant owes no duty to protect a plaintiff from particular harms arising from ordinary, or simple negligence. In a sports context, the doctrine bars liability because the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate. Thus, “a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Knight, supra, 3 Cal.4th at pp. 313, 315-317.)

In Knight, supra, 3 Cal.4th 296, the Court stressed the chilling effect that would flow from imposing liability on touch football players for ordinary careless conduct. “ ‘[E]ven when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity. . . .’ Accordingly, we concluded that coparticipants’ limited duty of care is to refrain from intentionally injuring one another or engaging in conduct that is ‘so reckless as to be totally outside the range of the ordinary activity involved in the sport.’ [¶] A majority of this court since extended Knight’s application of the primary assumption of risk doctrine to other sports, such as skiing and swimming.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990.)

Plaintiff first urged the Court to repudiate the primary assumption of risk doctrine. He relied upon arguments made against it by the authors of the separate opinions in Knight, supra, 3 Cal.4th 296, 321-338. “Continuing to find those arguments unpersuasive, we reaffirm the doctrine . . .”

In Knight, supra, 3 Cal.4th 296, the Court expressly left open the question whether the primary assumption of risk doctrine should be applied to sports like golf. (Id. at p. 320, fn. 7.) Subsequently, Courts of Appeal have grappled with the issue. As noted, in Dilger, supra, 54 Cal.App.4th 1452, the plaintiff was playing one hole when she was struck by a ball hit from another. Dilger sued the other golfer, in whose favor the trial court entered summary judgment. The Court of Appeal affirmed, holding that the primary assumption of risk doctrine applied. “[T]he court’s reasoning [in Knight, supra, 3 Cal.4th 296,] in limiting active sports participants’ liability applies equally as well to the sport of golf. [¶] While golf may not be as physically demanding as . . . basketball or football, risk is nonetheless inherent in the sport. Hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction. If every ball behaved as the golfer wished, there would be little ‘sport’ in the sport of golf. That shots go awry is a risk that all golfers, even the professionals, assume when they play.”

The Court pointed out that the Court of Appeal in the present matter had concluded that golf is an active sport in which participants run the risk of being hit by an errant ball, but had declined to apply the primary assumption of risk doctrine. Rather, it distinguished Dilger, supra, 54 Cal.App.4th 1452, on the ground that the plaintiff there was struck by a ball hit from another hole, whereas Shin was struck by a ball hit by a member of his own threesome.

The Supreme Court was not persuaded that a case should turn on whether a defendant is playing with the plaintiff, or in another group. “The question of duty involves the relationship of the parties to the sport. (Knight, supra, 3 Cal.4th at p. 309.) Coparticipants have the same relationship to the sport whether they are in the same playing group or not. This analysis is consistent with our conclusion in Cheong, supra, 16 Cal.4th 1063. There the parties were not competing against each other. They were coparticipants, however, because they were both engaged in the same sport, at the same time, using a common venue. The golfers both here and in Dilger, supra, 54 Cal.App.4th 1452, were sharing the same course, just as the skiers in Cheong were using the same ski run.”

The lesson to be drawn from Knight, supra, 3 Cal.4th 296, and its progeny, as well as the weight of authority in sister states, is that the primary assumption of risk doctrine should be applied to golf. Thus, we hold that golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is “so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.)

----Andrea Lynn Rice

www.andreariceesq.com

LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785

LIABILITY UPDATE
January 4, 2008

In Beal Bank, SSB v. Arter & Hadden, LLP 2007 Daily Journal D.A.R 15089, the California Supreme held that when an attorney leaves a firm and takes a client with him, the tolling in ongoing matters does not continue for claims against the former firm and partners.

In 1996, plaintiff Beal Bank, SSB, (Beal Bank) acquired certain loans from another bank, which had been placed into conservatorship by the Federal Deposit Insurance Corporation (FDIC). The loan documents contained default interest clauses that provided that in the event of default, the entire balance of principal and interest would become due and thereafter bear interest at an increased rate over and above the contract rate. The debtors missed payments on some of the loans. Beal Bank sent the debtors notices of acceleration and default and recorded notices of default.

Beal Bank retained defendant Arter & Hadden, LLP, to handle its collection efforts on these loans. Defendant Eric Dean, a partner, was the attorney primarily responsible for the representation. Counsel for the debtors advised Arter & Hadden, LLP, through correspondence and other means, that Beal Bank had no legal or factual basis for attempting to collect the default interest. In June 1997, the debtors transferred the collateral for the outstanding loans to an entity they controlled, which then filed for bankruptcy protection. Steven Gubner, an associate at Arter & Hadden, LLP, then began representing Beal Bank in the bankruptcy court. On Beal Bank’s behalf, Arter & Hadden, LLP, filed a motion for summary judgment in the bankruptcy court, arguing that Beal Bank was entitled to recover the default interest. The bankruptcy court ruled against Beal Bank and entered its final order on May 28, 1998. Beal Bank appealed the matter to the district court.

On December 31, 1998, Gubner left the employ of Arter & Hadden, LLP. Gubner’s new firm took over representation of Beal Bank. After the district court affirmed the bankruptcy court’s ruling, Beal Bank appealed to the Ninth Circuit Court of Appeals. On September 25, 2001, the Ninth Circuit issued its opinion, affirming the rulings of the lower courts.

Beal Bank filed a legal malpractice action against the attorneys who had represented it in the unsuccessful litigation: Gubner; Gubner & Associates; Ezra, Brutzkus & Gubner; Arter & Hadden, LLP; and Dean. It alleged defendants had failed to conduct any legal research, advise Beal Bank that its position was unlikely to prevail, or inform it of the risks involved in continuing to maintain its position and that as a result, Beal Bank incurred unnecessary legal fees, was deprived of an opportunity to settle with the debtors on favorable terms, and was forced to defend a breach of contract action brought by the debtors.

Arter & Hadden, LLP, and Dean demurred, arguing that Beal Bank suffered an actual injury on May 28, 1998, the date the bankruptcy court entered an adverse ruling against it, which commenced the running of the one-year statute of limitations under Code of Civil Procedure section 340.6 on Beal Bank’s malpractice claim. Relying on Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509 (Crouse), which held that continuing representation by a firm’s ex-attorney does not toll the statute of limitations against the firm, they argued that the statute of limitations was tolled as to them only until December 31, 1998, when Gubner left Arter & Hadden, LLP, taking Beal Bank with him as a client, and Arter & Hadden, LLP, ceased representing Beal Bank. In opposition, relying on Beane v. Paulsen (1993) 21 Cal.App.4th 89 (Beane), which held that continuing representation by a firm’s ex-attorney does toll the statute of limitations against the firm and its partners.

The trial court acknowledged the conflict of authority between Crouse and Beane. It found Crouse more persuasive, concluded the claims were time-barred, sustained the demurrers without leave to amend, and entered judgments of dismissal as to Dean and Arter & Hadden, LLP. On appeal, the Court of Appeal agreed with the reasoning of Beane, supra, 21 Cal.App.4th 89, disagreed with the reasoning of Crouse, supra, 67 Cal.App.4th 1509, and reversed. The Supreme Court granted review to resolve this split of authority.

Code of Civil Procedure section 340.6, subdivision (a) provides in part: “An action against an attorney for a wrongful act or omission . . . arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except [where specified circumstances give rise to tolling].” Thus, the limitations period is one year from actual or imputed discovery, or four years (whichever is sooner), unless tolling applies.

The Court found it significant that, “while section 340.6, subdivision (a) defines the limitations period for “[a]n action against an attorney,” the tolling provision in subdivision (a)(2) extends the limitations period only during ongoing representation by “[t]he attorney.” “Under ordinary rules of grammar, ‘[t]he attorney’ in subdivision (a)(2) refers back to the ‘attorney’ who is the target of the action in subdivision (a). . . . Thus, under the most natural reading of the statute, an action against an individual attorney is tolled so long as that attorney continues representation; conversely, an attorney’s continued representation tolls an action only against that attorney.”

The Court of Appeal had “dismissed the text of the statute” by noting that section 340.6 has also been applied to actions against law firms. The Supreme Court pointed out, however, “[t]hat either an attorney or a firm may be the subject of an action does not support a reading under which representation by one attorney or firm might toll the limitations period as to another no longer affiliated attorney or firm. Rather, the text implies an action against a law firm is tolled so long as that firm continues representation, just as an action against an attorney is tolled so long as that attorney continues representation, but representation by one attorney or firm does not toll claims that may exist against a different, unaffiliated attorney or firm.”

The Court found that the interpretation “most naturally suggested by the statute’s text” “dovetails with the Legislature’s ostensible purposes in adopting section 340.6. Assembly Bill No. 298 reflected a balancing of the interests of clients, who should not be prevented from obtaining relief when they could not have become aware of professional negligence, and attorneys, who in order to obtain malpractice coverage needed some definite outside limitations period.” “As the legislative history indicates, ‘[t]he purpose of the bill [was] to reduce the costs of legal malpractice insurance.’ ”

We do not presume that our interpretation offers a perfect solution or that stays and tolling agreements will eliminate entirely disruption of the client’s relationship with its chosen counsel. Given the conflicting interests at stake, there are no perfect solutions. The interpretation we adopt is the one most faithful to section 340.6’s language and to the full range of interests the Legislature balanced in passing that statute. The Court of Appeal, and Beane before it, erred in disregarding section 340.6’s language and in engaging in policy analysis unmoored from the statutory text. We disapprove Beane v. Paulsen, supra, 21 Cal.App.4th 89, to the extent it is inconsistent with this opinion.

----Andrea Lynn Rice

December 2007 Attorney Blog

LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785

www.andreariceesq.com

LIABILITY UPDATE
December 28, 2007

In Urhausen v.Longs Drug Stores California, Inc. 2007 Daily Journal D.A.R 14503, the First Appellate District of the California Court of Appeal held that disabled access regulations governing the slope of parking spaces were not intended to provide a cause of action for disabled persons who have suffered physical injury, but to persons who have been denied the same access to public facilities as persons without a disability.

As a consequence of a neuromuscular condition, plaintiff has used crutches for over 30 years. In September 2002, plaintiff drove to an unenclosed shopping center in Martinez owned by defendants Patty and George Ogino and managed by defendant David H. Malcolm & Associates (hereafter jointly referred to as Malcolm). She parked in front of a drugstore run by defendant Longs Drug Stores California, Inc. (Longs). The parking space was one of several located directly in front of the drugstore, all of which dead-ended against the curb of the sidewalk that ran along the frontage of the store.

At the time of the incident underlying this lawsuit, plaintiff possessed a disabled person parking placard entitling her to park her vehicle in spaces reserved for the use of disabled persons. Although the right-hand disabled access parking space was not occupied by a vehicle, plaintiff, as was her habit, chose not to park in that space but took the ordinary parking space immediately adjoining it. As she emerged from her vehicle, therefore, she was standing in the disabled access space. After lifting her crutches from the vehicle, she headed for the entrance of the drugstore. Within eight inches of the curb at the head of the disabled access parking space, before she had begun to step up onto the sidewalk, plaintiff fell backwards. The fall severely fractured her wrist, and she remained on the ground until taken away by ambulance to the hospital.

Plaintiff filed suit against defendants, alleging negligence per se, and denial of equal access under the California’s Disabled Person’s Act (DPA) (Civil Code section 54, et seq.). The trial court granted defendants’ motions for judgment on the pleadings. Plaintiff appealed, and the Court of Appeal affirmed.

Plaintiff contended that the trial court improperly granted judgment for defendants on her DPA and negligence per se claims. She claimed that she was denied full and equal access to the Longs store because the disabled access parking space and the adjacent aisle did not comply with slope regulations applicable under the DPA. In the area of plaintiff's fall, from a distance of eight inches to the curb, the slope was measured as 18.75 percent. The applicable regulations governing disabled access parking spaces permitted a maximum slope of 2 percent in any direction. (Cal. Code Regs., tit. 4, § 1129B.3, subd. 4.) Plaintiff contended that this noncompliant slope caused her to fall backward. Plaintiff also presented evidence that the cross‑hatched access aisle between the disabled access parking spaces failed to comply with applicable regulations.

The appellate court observed that Sections 54 through 55.2 are intended to secure to disabled persons the “same right as the general public to the full and free use” of facilities open to the public. (§ 54, subd. (a).) “Full and equal access” is defined by section 54.1 to mean access that complies with the regulations developed under the federal Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12111-12117), or under state statutes, if the latter impose a higher standard. (§ 54.1, subd. (a)(3).) “ ‘Access’ refers not only to entry into a building but, more broadly, to the use of all facilities made available for general public use, such as restrooms, parking, and fixtures within a building.”

The court noted that the private cause of action provided by section 54.3 has not been extensively considered by our courts, and that the leading case is still Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168 (Donald). Donald held that section 54.3 incorporates what is, in effect, a standing requirement. As the court explained, “to maintain an action for damages pursuant to section 54 et seq. an individual must take the additional step of establishing that he or she was denied equal access on a particular occasion. . . . For example, let us take a restaurant that is required to have 100 percent of its dining area accessible to the handicapped, but in fact only 90 percent of the dining area meets this standard. If a handicapped individual is readily seated and served in the 90 percent primary dining area which meets all handicap access requirements, then he or she would not have a cause of action for damages for denial or interference with admittance pursuant to Civil Code section 54.3, but an individual or a designated public agency could pursue an action under one of the enforcement provisions to bring about full compliance by the restaurant.” The court noted that subsequent cases have recognized this standing requirement, “at least implicitly.”

Plaintiff Urhausen argued that she satisfied the standing requirement because the sudden increase in slope near the curb caused her to fall, thereby preventing her from entering the store. “While we recognize that the failure of the parking space to comply with slope requirements was the cause of plaintiff's injury, and therefore a cause of her failure to reach the entrance of the drugstore, we do not believe that this is sufficient to demonstrate that plaintiff was denied equal access to the store. The phrase ‘denied equal access’ necessarily implies that either the structure of the public facility, or some policy of its operator, precluded equal access. It is undisputed, however, that Longs provided access to its entrance by way of an aisle, curb cut, and ramp installed for the particular use of the disabled. Because this means of access was at all times available for plaintiff's use, she cannot demonstrate that she was denied equal access to the store without demonstrating that this route, too, was inadequate. By her own acknowledgment, however, she was fully capable of negotiating a typical disabled access ramp. It was plaintiff's injury, and not the physical configuration of the store, that prevented plaintiff from entering. Accordingly, she was not denied equal access to the store; rather, she was unable to enter as a result of her fall.” (Emphasis in the original.)

Plaintiff next argued that she should have been permitted to use the disabled access parking space slope regulation as the applicable standard for negligence under the doctrine of negligence per se because the regulation was promulgated for the protection of disabled persons in accessing public facilities. The court rejected this argument as well.

While the requirement of an essentially level surface undoubtedly eases the transition even for the ambulatory disabled, such as plaintiff, it was particularly intended to accommodate wheelchair users, who require a level surface on which to rest a lift or ramp. The level surface is therefore intended to facilitate the use of mechanized means of vehicle entry and exit and minimize the accidents that a greater slope or irregular surface might cause, such as a loss of balance or unintended movement of a wheelchair.

Given this intent, the court concluded that, for at least two reasons, the slope regulation was not designed to prevent the type of accident suffered by plaintiff. “First, the regulations were not designed to prevent injury to persons crossing the parking space or curb on foot. As noted above, the regulations anticipate that disabled persons will use the aisle, curb cut, and ramp to enter the store, not that they will step up onto the curb. Necessarily, the regulations anticipate that when the parking space is being used by a disabled person, a vehicle will be parked there, preventing persons from stepping onto the curb. Second, the requirement of a level surface was designed primarily to facilitate the use of wheelchairs and mechanized loading devices, not to make it easier to cross the parking space or aisle. As the considerably steeper access ramp slope requirement demonstrates, it is not necessary to impose a 2 percent slope to allow disabled persons to cross the parking space and aisle.”

----Andrea Lynn Rice

2007 Cumulative Review

LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
http://www.andreariceesq.com/

LIABILITY UPDATE
CUMULATIVE REVIEW 2007

ANTI-SLAPP

3/23/07 Kolar v. Donahue, McIntosh & Hammerton
A legal malpractice action does not arise from an activity protected by the anti‑SLAPP statute. (Code Civ. Proc., § 425.16.)
145 Cal.App.4th 1532 (Review denied: March 21, 2007)

12/14/07 Philipson & Simon v. Gulsvig
A law firm’s causes of action against a former client fell within the protection of the anti-SLAPP statute, where each of them was based substantially upon a client’s petitioning activity—first her initiation of a fee arbitration proceeding under the Mandatory Fee Arbitration Act, and then her initiation of a cross‑complaint against the law firm in the present action.
154 Cal.App.4th 347

11/16/07 Rohde v. Wolf
An attorney’s prelitigation voicemail messages that accused a real estate agent of conspiring with the adverse party to defraud the attorney’s client and that threatened to take “appropriate action” are subject to both the anti-SLAPP statute and the litigation privilege in Civil Code section 47, subdivision (b).
154 Cal.App.4th 28

ATTORNEYS

2/9/07 Brooks v. Shemaria
The “actual innocence” requirement applicable to a claim for legal malpractice arising from defense of a criminal prosecution does not apply to a fee dispute.
144 Cal.App.4th 434

8/24/07 Expansion Pointe Properties Limited Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP
Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1046‑1053, a case in which the California Supreme Court held that as a matter of public policy that lost punitive damages in an underlying action are not recoverable as compensatory damages in a legal malpractice action, applies retrospectively.
152 Cal.App.4th 42

1/19/07 Federici v. Gursey Schneider & Co., LLP
A plaintiff’s professional negligence action was barred by failure to comply with language in a retainer agreement that requires, as a prerequisite to any future malpractice action, that plaintiff raise existing professional negligence claims as an affirmative defense in any fee-related arbitration.
143 Cal.App.4th 606
[Note: The California Supreme Court has agreed to review this decision.]

9/14/07 Lazy Acres Market, Inc. v. Tseng
Where an insurance company agrees to defend its insured in a negligence action without a reservation of rights, and the insured hires its own attorney to represent it because it believes the insurance company’s attorney has a conflict of interest, the insured who wishes to recover its attorney fees does not have a cause of action for malpractice against the insurance company’s attorney because there is no causal relation between the attorney’s alleged breach of duty and damages.
152 Cal.App.4th 1431 (Review and depublication request denied: October 10, 2007)

6/1/07 PCO, Inc. v. Christensen, Fink, Jacobs, Glaser, Weil & Shapiro, LLP
An attorney acts in his capacity as partner in a law firm when he acts at the client’s request to protect funds from which the client’s bail and the firm’s bills are to be paid, thus making the firm vicariously liable for his acts.
150 Cal.App.4th 384

10/5/07 Rose v. Hudson
The California Supreme Court’s rulings in Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, which held that, in a criminal malpractice lawsuit, 1) a client must show innocence by postconviction exoneration and 2) that the statute of limitations period begins to run when the attorney commits professional negligence and not when the client obtains postconviction relief, apply retroactively.
153 Cal.App.4th 641 (Review denied: October 24, 2007)

3/30/07 Sangha v. La Barbera
In a criminal malpractice case, the requirements of actual innocence and post-conviction relief applies both to the offenses to which a former attorney negligently advised the client to plead guilty and to the lesser included offense to which the client actually pleaded guilty.
146 Cal.App.4th 79

5/25/07 Zenith Ins. Co. v. O’Connor
The attorney for a primary insurance carrier owes no duty to a reinsurer that did not retain him.
148 Cal.App.4th 998



CHOICE OF LAW

11/9/07 Frontier Oil Corporation v. RLI Insurance Company
Notwithstanding the application of the governmental interest analysis to other choice-of-law issues, Civil Code section 1646, which states that a contract is to be interpreted according to the law and usage of the place where it is to be performed, but only if the contract “indicate[s] a place of performance,” and is to be interpreted according to the law and usage of the place where it was made if the contract “does not indicate a place of performance,” determines what law governs the interpretation of a contract.
153 Cal.App.4th 1436 (Review denied: November 14, 2007)

CIVIL RIGHTS

7/27/07 Angelucci v. Century Supper Club
In order to state a claim under the Unruh Civil Rights Act, plaintiffs do not have to demonstrate that they affirmatively requested nondiscriminatory treatment and were refused.
41 Cal.4th 160

CONSUMER LEGAL REMEDIES ACT

12/7/07 Fairbanks v. Superior Court (Farmers New World Life Ins. Co.)
Insurance is neither a “good” nor a “service” within the meaning of the Consumer Legal Remedies Act (Civil Code, §§ 1750 et seq.)
154 Cal.App.4th 435
[Note: The California Supreme Court has agreed to review this decision.]

DAMAGES

12/21/07 Dodson v. J. Pacific, Inc.
Where a plaintiff has undergone surgery in which a herniated disc is removed and a metallic plate is inserted in its place, and the jury has expressly found that the defendant's negligence was a cause of plaintiff's injury, the failure to award any damages for pain and suffering results in a damage award that is inadequate as a matter of law.
154 Cal.App.4th 931

9/7/07 Katiuzhinsky v. Perry
While an injured plaintiff in a tort action cannot recover more than the amount of medical expenses he or she paid or incurred, the intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their payment.
152 Cal.App.4th 1288 (Review denied: September 25, 2007)

EMPLOYMENT LAW

7/6/07 Franklin v. The Monadnock Co.
Allegations that an employee was fired for reporting threats of violence by a co‑worker are sufficient to state a claim for wrongful termination based on the public policies that require employers to provide a safe and secure workplace and encourage employees to report credible threats of violence in the workplace.
151 Cal.App.4th 252

7/20/07 Loggins v. Kaiser Permanente International
Summary judgment is appropriate if an employee does not submit substantial responsive evidence from which a trier of fact could find that her employer’s articulated reason for terminating her employment was a pretextual smokescreen to obscure the actual reason for terminating her employment.
151 Cal.App.4th 334 (Review denied: August 8, 2007)

EXPERT TESTIMONY

6/15/06 DePalma v. Rodriguez
Where the general substance of an expert witness’s opinion testimony at his deposition was that the nature of an accident was such that one would not expect a person of normal health to have suffered “any” injury from the accident in question, the expert did not exceed the scope of his deposition testimony when he opined at trial that one would not expect the accident to result in the specific injuries complained of.
151 Cal.App.4th 159

6/22/07 Powell v. Kleinman
To make a prima facie showing of the nonexistence of any genuine issue of material fact, the declaration of the defendant’s expert has to be detailed and with foundation, but the declaration of the plaintiff’s expert in opposition to the defendant’s summary judgment motion does not have to be detailed, and is entitled to all favorable inferences.
151 Cal.App.4th 112

INSURANCE COVERAGE

8/10/07 Allstate Insurance Company v. Superior Court (Delanzo)
The common law “made-whole” doctrine provides that an insurer is not entitled to funds unless the insured has been made whole by the recovery from the tortfeasor and any other source. Under no-fault medical payments insurance coverage, the attorney fees and costs incurred by the insured to obtain the compensation from the third party tortfeasor are not deducted when calculating the total recovery received by the insured.
151 Cal.App.4th 1512
[Note: The California Supreme Court has agreed to review this decision.]

9/21/07 Marquez Knolls Property Owners Assn, Inc. v. Executive Risk Indemnity, Inc.
An endorsement in a liability insurance policy issued to a non-profit property owners association which excludes coverage of claims for wrongful acts based on the design or construction of any structure does not preclude coverage for a lawsuit brought by a member against the association asserting claims of fraud and breach of duty based, not on the association’s involvement in the design or construction of a structure, but on the association’s conduct in opining on a dispute that arose between the member and another homeowner after the member constructed a structure blocking the view of the other homeowner.
153 Cal.App.4th 1064

6/8/07 Pacific Business Connections, Inc. v. St. Paul Surplus Lines Ins. Co.
An insurer is required to cancel an insurance policy under Insurance Code section 673 once it receives notice from the company that financed the insurance premiums that the insured has defaulted on its loan obligation.
150 Cal.App.4th 517

5/11/07 Safeco Ins. Co. of America v. Fireman’s Fund Ins. Co.
A primary insurer is only liable to indemnify its insured for one occurrence arising from a landslide that damaged downhill properties because 1) the ensuing damage was the result of one cause: the landslide, and 2) under the language of the policy, the continuation of any damage into subsequent policy periods did not give rise to multiple occurrences.
148 Cal.App.4th 620

2/16/07 TRB Investments, Inc. v. Fireman’s Fund Ins. Co.
In a property insurance policy that withdraws coverage for specified perils while the insured premises are vacant, but contains an exception stating that buildings “under construction” are not considered vacant, the term “construction” “contemplates all building endeavors, whether classified as new construction, renovations, or additions, which require the substantial and continuing presence of workers at the premises.”
40 Cal.4th 19

MALICIOUS PROSECUTION

3/16/07 Ross v. Kish
Dismissal of a lawsuit as a discovery sanction for the plaintiff’s refusal to be deposed constitutes favorable termination for purposes of an action for malicious prosecution.
145 Cal.App.4th 188 (Review denied: February 21, 2007)

10/12/07 Siebel v. Mittlesteadt
A postjudgment settlement constitutes a favorable termination when the malicious prosecution plaintiff received a favorable judgment in the underlying action, and settled without giving up any portion of the judgment in his favor.
118 Cal.App.4th 406
[Note: The California Supreme Court has agreed to review this decision.]

MEDIATION PRIVILEGE

4/6/07 Jeld-Wen, Inc. v. Superior Court (Marlborough Development Corp.)
Trial courts do not have the authority to order parties in a complex civil action to attend and pay for private mediation.
146 Cal.App.4th 536

MEDICAL MALPRACTICE

3/2/07 Fields v. Yusuf
When a member of a surgical team fails to remove a sponge from the patient, prejudicial error results when a trial court refuses to instruct the jury on 1) res ipsa loquitor, 2) the non-delegable duty of a surgeon, and 3) the “captain of the ship doctrine.”
146 Cal.App.4th 536 (Review denied and depublication request denied: February 7, 2007)

8/17/07 Garabet v. Superior Court (Boghosian)
Irrespective of the one-year provision of Code of Civil Procedure section 340.5, its three year provision provides an outer limit which terminates all medical malpractice liability and which commences to run when the patient is aware of the physical manifestations of his or her injury without regard to awareness of the negligent cause.
151 Cal.App.4th 1538

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

11/30/07 Ra v. Superior Court (Presidio International)
In a bystander claim for negligent infliction of emotional distress, the requirement of “contemporary sensory awareness of the causal connection between the negligent conduct and the resulting injury” limits recovery to a plaintiff who clearly and distinctly perceived the injury being inflicted.
154 Cal.App.4th 142

PREMISES LIABILITY

8/3/07 Barber v. Chang
A landlord has a duty to undertake minimally burdensome measures to alleviate the risk posed by a violent tenant.
151 Cal.App.4th 1456

10/19/07 Castaneda v. Olsher
Landlords, including mobilehome park owners, ordinarily have no duty to reject prospective tenants they believe, or have reason to believe, are gang members, because to recognize such a duty would tend to encourage arbitrary housing discrimination and would place landlords in the untenable situation of facing potential liability whichever choice they make about a prospective tenant.
41 Cal.App.4th 1205

12/28/07 Urhausen v.Longs Drug Stores California, Inc.
Disabled access regulations governing the slope of parking spaces were not intended to provide a cause of action for disabled persons who have suffered physical injury due to a fall, but to persons who have been denied the same access to public facilities as persons without a disability.
155 Cal.App.4th 254

PUNITIVE DAMAGES

3/9/07 Kelly v. Haag
An award of punitive damages must be reversed where the plaintiff fails to present evidence of the defendant’s financial condition as of the time of trial.
145 Cal.App.4th 910

11/2/07 McGee v. Tucoemas Federal Credit Union
A federally chartered credit union is subject to punitive damages.
153 Cal.App.4th 1308 (Review denied: November 14, 2007)

4/27/07 Philip Morris USA v. Williams
The Constitution’s Due Process Clause does not permit a jury to base a punitive damages award in part upon its desire to punish the defendant for harming persons who are not before the court (e.g., victims whom the parties do not represent). Such an award would amount to a taking of “property” from the defendant without due process.
127 S.Ct. 1057

REAL ESTATE AGENTS AND BROKERS

4/13/07 Manderville v. PCG&S Group, Inc.
Exculpatory provisions in a realtor’s standardized form agreement do not necessarily preclude buyers from showing justifiable reliance as an element of their claims of intentional misrepresentation. Nor does a buyer’s lack of due diligence in conducting an investigation of zoning laws preclude the buyer from asserting justifiable reliance on the broker’s alleged representation that a property could be subdivided.
146 Cal.App.4th 1486 (Review denied: April 11, 2007)

1/5/07 Warren v. Merrill
A real estate agent’s breach of fiduciary duty to a buyer by fraudulently procuring title to the property warrants imposing a constructive trust on property in favor of the buyer.
143 Cal.App.4th 96

RELEASES

9/28/07 City of Santa Barbara v. Superior Court
A release of liability relating to recreational activities generally is not effective as to gross negligence.
41 Cal.4th 747

STATUTE OF LIMITATIONS

10/26/07 E-Fab, Inc. v. Accountants, Inc. Services
The “delayed-discovery rule” applies to a plaintiff who was the victim of embezzlement by an employee whom the defendant had recruited and placed with the plaintiff.
153 Cal.App.4th 1308

4/20/07 Grisham v. Philip Morris U.S.A., Inc.
A statute of limitations for physical injuries resulting from smoking begins to run where a plaintiff discovers or should have discovered she is addicted to cigarettes.
40 Cal.App.4th 623

1/12/07 Nelson v. Indevus Pharmaceuticals, Inc.
The statute of limitations under Code of Civil Procedure section 340.8 applies to claims for personal injury due to use of prescription drugs and does not begin to run when some members of the public have a suspicion of wrongdoing, but only “once the plaintiff has a suspicion of wrongdoing.”
142 Cal.App.4th 1202 (Review denied and depublication request denied: November 29, 2006)

11/23/07 Shirk v. Vista Unified School District
The 2002 legislative amendment provided that ‘revived’ for the calendar year 2003 those causes of action for childhood sexual molestation that would otherwise have been barred ‘solely’ by expiration of the applicable statute of limitations (Code Civ. Proc., § 340.1, subd. (c), does not apply when a plaintiff suing a public entity has failed to first present a timely claim to the entity, as required by the government claims statute (Gov. Code, § 911.2).
42 Cal.4th 201

SUMMARY JUDGMENT

2/2/07 Weber v. John Crane, Inc.
In an asbestos exposure case, a plaintiff’s deposition testimony that he did not recall the defendant’s name and did not recall whether he worked with any product bearing the defendant’s name did not, without more, meet the defendant’s initial burden of producing evidence that the plaintiff does not possess, and cannot reasonably obtain, evidence the defendant was a cause of the plaintiff’s injuries from any source.
143 Cal.App.4th 1433 (Review denied and depublication request denied: January 3, 2007)

TORTS

2/23/07 Barrett v. Rosenthal
The Communications Decency Act of 1996 1) prohibits “distributor” liability for Internet publications; 2) immunizes individual ‘users’ of interactive computer services; and 3) draws no practical distinction between active and passive use.
40 Cal.App.4th 33

8/31/07 Berkley v. Dowds
No cause of action exists for “wilful misconduct” and no claim for elder abuse or professional negligence may be stated in the absence of specific allegations of causation.
152 Cal.App.4th 518 (Review denied: September 19, 2007)

6/29/07 Conroy v. Regents of the University of California
A medical school to whom a body is donated has no duty to notify a relative before disposing of the body.
151 Cal.App.4th 132

1/26/07 May v. Nine Plus Properties
Absent “special circumstances,” the owner or bailee of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it. Leaving the keys in the ignition, with the vehicle unlocked and unattended, is not, by itself, one of these special circumstances.
143 Cal.App.4th 1538 (Review denied: January 17, 2007)

7/13/07 Rotolo v. San Jose Sports and Entertainment, LLC
A business has neither a common law or statutory duty to notify users of a facility of the existence and location of an automatic external defibrillator at its facility, and its only common law duty is to timely summon emergency services.
151 Cal.App.4th 252 (Review denied: August 15, 2007)

5/4/07 Taus v. Loftus
A claim is stated for “intrusion into private matters” where a defendant specifically makes misrepresentations to obtain information for a party’s relative rather than simply shading or withholding information when interviewing a potential news source.
40 Cal.App.4th 683

5/18/07 TSI Seismic Tenant Space, Inc. v. Superior Court (Geocon Incorporated)
It is error to find a settlement between a developer and a subcontractor was entered into in good faith that is based solely upon a limitation of liability clause in the contract between the two, without considering the settling party’s proportionate share of liability to the other defendants on their claims for indemnity or contribution.
149 Cal.App.4th 159 (Depublication request denied: July 18, 2007)



(2007CumReview)