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)
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)
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