Skip to main content

California Law Update – February/March 2018

By March 30, 2018April 22nd, 2018Law Updates
  1. (Arbitration) Party clearly, unmistakably consents to arbitration where party willfully participates in proceeding without objection, asks arbitrator to issue order and tries to rescind participation after arbitrator denies request. Clayton Douglas v. Serenivision, Inc. (Los Angeles County Super. Ct No. BC596779 California Courts of Appeal, Second Appellate District, Division Two, filed February 8, 2018)
  2. (Elder Abuse Act) A claimant alleging wrongful death due to neglect under the Elder Abuse Act is not subject to arbitration requirements under MICRA. Alex Avila v. Southern California Specialty Care, Inc. (No. G054269 California Courts of Appeal Fourth Appellate District, Division Three, filed February 26, 2018)
  3. (Summary Judgment) Where defendant shows causation is uncertain and plaintiff offers no further evidence, summary judgment in negligence proper as causation element ‘remained an unknown matter.’ Agustin Leyva v. Abel Garcia (No. F073398 California Courts of Appeal, Fifth Appellate District, filed February 27, 2018)
  4. (Intervening Cause) Intervening conduct by a third party that is not a likely hazard which causes injury is unforeseeable under ‘Rowland’ Travis Sakai v. Massco Investments, LLC (No. B279275 California Courts of Appeal, Second Appellate District, Division One, filed March 1, 2018)
  5. (Anti – SLAPP) Special motion to strike may be supported purely by fact that allegations in complaint target protected activity. Bel Air Internet, LLC v. Albert Morales (No. B270268 California Courts of Appeal, Second Appellate District, Division Two, filed February 26, 2018)
  6. (Independent Contractor) Under ‘Seabright,’ hirer delegates to independent contractor responsibility to comply with statutory or regulatory safety requirements applicable to contractor’s work. Luz Elena Delgadillo v. Television Center, Inc. (No. B270985 California Courts of Appeal, Second Appellate District, Division Three, filed February 27, 2018)
  7. (Intentional Interference) Intentional interference of contractual relations tort may be successfully brought even against nonparty whose performance is contemplated in sued-over contract. Wayne Redfearn v. Trader Joe’s Company (No B270487 California Courts of Appeal, Second Appellate District, Division Seven, filed February 27, 2018)
  8. (MICRA) Notice of intent to file a medical malpractice action is adequately provided to a physician under ‘MICRA’ if mailed to the physician’s address on file with medical board. Maryjane Selvidge v. Sullyvan W. Tang (No. C083427 California Courts of Appeal, Third Appellate District, filed March 5, 2018)
  9. (Torts) Drug treatment facility which undertook reasonable measures to prevent drug use not liable for injuries to voluntary resident who surreptitiously obtained and consumed drugs. Klean W. Hollywood, LLC v. The Superior Court of Los Angeles County (No. B283816 California Courts of Appeal, Second Appellate District, Division Four, filed March 8, 2018)
  10. (Anti-SLAPP) Anti-SLAPP motion properly granted where public employee suit was in response to internal investigation of his alleged misconduct. Thomas Guarino v County of Siskiyou (No. C076629 Super Ct. No. SCCVCV1301013 California Courts Appeal third Appellate District filed March 29,2018)
  11. (Offer to Compromise) trial courts not err in imposing penalties for plaintiff not accepting defendant’s 998 offers under CCP Section 998. Timed out LLC v 13359 Corp. (Los Angeles County Super. Ct No. BC583739 California Courts of Appeal second Appellate District division one filed March 27,2018)
  12. (Trial Preference) Trial court improperly denied severely ill petitioner’s motion for trial preference under Code of Civil Procedure Section 36 (a) by applying mistakenly burdensome evidentiary standard. Ardella Fox v The Superior Court of the City and County of San Francisco. (No. A153672 San Francisco City & County Super Ct. No. CGC-17-276565 California Courts of Appeal First Appellate District Division Four filed March 20, 2018)
  13. (Torts) Based on special relationship doctrine, colleges owe students duty of care to protect them from foreseeable violence during curricular activities. The Regents of the University v The Superior Court of Los Angeles County. (No. S230568 Ct. App. 2/7 B259424 Los Angeles County Super Ct. No. SC108504 Supreme Court of California filed March 22,2018)
  14. (Anti-SLAPP) Defendant filing anti-SLAPP motion must move to strike within 60 days of service of the earliest complaint containing the cause of action defendant is attempting to strike. Newport Harbor Ventures, LLC v Morris Cerullo World. (No. S239777 Orange County Ct. App. 4/3 G052660 Super Ct No. 30-2013-00665314 Supreme Court of California filed March 22, 2018)

The above referenced matters have come to our attention during last two months. Please find below a brief summary of these newly issued opinions.

  1. (Arbitration) Party clearly, unmistakably consents to arbitration where party willfully participates in proceeding without objection, asks arbitrator to issue order and tries to rescind participation after arbitrator denies request. Clayton Douglas v. Serenivision, Inc. (Los Angeles County Super. Ct No. BC596779 California Courts of Appeal, Second Appellate District, Division Two, filed February 8, 2018)

In this case, a party to an arbitration sought to challenge and arbitrator’s jurisdiction over the pending matter. Prior to challenging the arbitrator’s jurisdiction, the party answered the arbitration proceeding and advised the arbitrator that it was voluntarily submitting to the arbitrator’s jurisdiction. The party also appeared at multiple pre-hearing conferences and formally asked the arbitrator to impose a bond requirement on the opposing party. It was after the arbitrator denied that request that the party challenged the arbitrator’s jurisdiction. The appeals court concluded that the party’s challenge to the arbitrator’s jurisdiction was untimely and that challenges to the arbitrator’s assessment of jurisdiction and to the ultimate arbitration award were without merit.

  1. (Elder Abuse Act) A claimant alleging wrongful death due to neglect under the Elder Abuse Act is not subject to arbitration requirements under MICRA. Alex Avila v. Southern California Specialty Care, Inc. (No. G054269 California Courts of Appeal Fourth Appellate District, Division Three, filed February 26, 2018)

In this case, defendant appealed from a trial court’s order denying its petition to compel arbitration as to the negligence and elder abuse claims of the now deceased patient and the wrongful death claim brought by the family members. The trial court ruled that the wrongful death claim was not subject to arbitration. The court further exercised its discretion under Code of Civil Procedure §1281.2(c) and refused to enforce the arbitration agreement as to the remaining claims related to negligence and elder abuse due to the risk of inconsistent judgments.

The appeals court found no error and affirmed the order.

In so ruling, the appeals court noted that under the Medical Injury Compensation Reform Act (MICRA) and Ruiz v. Podolsky, wrongful death claimants alleging professional negligence are bound by signed arbitration agreements. In this case, the complaint alleged neglect and willful misconduct. The appeals court acknowledged there could be overlap between the professional negligence and elder abuse. However, under Sababin v. Superior Court, the Elder Abuse and Dependent Adult Civil Protection Act’s definition of neglect referred to “the undertaking of medical services, [not to] the failure to provide medical care”. Thus, the neglect alleged was the failure to attend to basic needs, not the poor performance of medical services.

  1. (Summary Judgment) Where defendant shows causation is uncertain and plaintiff offers no further evidence, summary judgment in negligence proper as causation element ‘remained an unknown matter.’ Agustin Leyva v. Abel Garcia (No. F073398 California Courts of Appeal, Fifth Appellate District, filed February 27, 2018)

Plaintiffs sued their landlord for injuries as a result of a fire in an upstairs apartment which caused their injuries. It was undisputed that the heat source of the fire’s ignition was a gas wall heater in the upstairs apartment, but it was uncertain what actually caused the fire to ignite. One possibility was the heater malfunctioned; another was that plaintiffs placed combustible materials too close to the heater. Defendant filed a motion for summary judgment on the grounds that plaintiffs were unable to establish causation, an essential element of a negligence cause of action. In support of the motion, defendant provided expert opinions of two fire investigators. Plaintiff failed to produce any evidence in opposition to the motion. The trial court found that defendant met its initial burden of showing plaintiffs could not prove causation, and thus the burden shifted to the plaintiffs to set forth evidence demonstrating a triable issue of material fact. Since plaintiffs failed to do so, the trial court granted defendant’s motion for summary judgment. Plaintiffs’ appealed from the resulting judgment. The appeals court affirmed the judgment of the trial court.

  1. (Intervening Cause) Intervening conduct by a third party that is not a likely hazard which causes injury is unforeseeable under ‘Rowland’. Travis Sakai v. Massco Investments, LLC (No. B279275 California Courts of Appeal, Second Appellate District, Division One, filed March 1, 2018)

Plaintiff sued defendant for negligence and premises liability after he was struck and then dragged by a vehicle exiting the defendant’s parking lot. The trial court granted summary judgment to the defendant on the ground that there was “no foreseeability and no duty”. On appeal, the plaintiff argued the trial court erred because the accident was reasonably foreseeable. The appeals court disagreed and affirmed the trial court’s ruling.

Plaintiff had claimed that the defendant leased its parking lot out to a taco truck vendor. The plaintiff wanted to buy food from the taco vendor and was involved in an accident in the parking lot of the gas station. He was struck by a vehicle exiting the parking lot in an incautious way and was seriously injured. The appeals court found that the conduct of the driver (who struck the plaintiff) was not foreseeable or derivative of the defendant’s conduct in designing, leasing or operating the parking lot. Therefore, the appeals court declined to find the owner was responsible for the harm to the plaintiff as a matter of policy.

  1. (Anti – SLAPP) Special motion to strike may be supported purely by fact that allegations in complaint target protected activity. Bel Air Internet, LLC v. Albert Morales (No. B270268 California Courts of Appeal, Second Appellate District, Division Two, filed February 26, 2018)

This appeal required the appellate division to consider the role of the pleadings and supporting declarations in deciding a motion to strike under the anti-SLAPP statute (Code Civ. Proc., §425.16). This law protects the exercise of certain constitutional rights by permitting a motion to strike when a complaint targets specified conduct that involves a right to freedom of speech or the right to petition the government. When a plaintiff’s complaint shows that a claim arises from communications that are protected under the statute, the question before the court becomes whether the defendant must support a motion to strike with declarations confirming that his or her actions fall within one of the categories of protected conduct.

The appeals court concluded that when the complaint itself alleges protected activity, a moving party may rely on the plaintiff’s allegations alone in arguing that the plaintiff’s claims arise from an act “in furtherance of the persons’ right of petition or free speech”. While the statute requires a court to consider both the “pleadings” and the “supporting and opposing affidavits stating the facts upon which the liability or defense is based” it does not require a moving party to submit declarations confirming the factual basis for the plaintiff’s claims. Here, plaintiff and respondent alleged that the defendants and appellants encouraged fellow employees of plaintiff to quit and sue the company for alleged employment violations rather than sign a release of such claims that the plaintiff requested. Consistent with several decisions by the California Supreme Court, this appellate court concluded that such pre-litigation conduct encouraging third parties to sue was protected petitioning activity under the anti-SLAPP statute. In bringing a motion to strike under this section, the defendant did not have to submit supporting declarations.

  1. (Independent Contractor) Under ‘Seabright,’ hirer delegates to independent contractor responsibility to comply with statutory or regulatory safety requirements applicable to contractor’s work. Luz Elena Delgadillo v. Television Center, Inc. (No. B270985 California Courts of Appeal, Second Appellate District, Division Three, filed February 27, 2018)

Plaintiffs are the surviving wife and children of the decedent who fell to his death while washing windows on a building owned by the defendant. Plaintiffs sued the defendant for negligence and negligence per se, alleging that decedent was fatally injured because defendant failed to install structural roof anchors as required by statute to which the decedent could attached a descent apparatus. Defendant moved for summary judgment, contending the plaintiffs’ suit was barred by Privette v. Superior Court (1993) 5Cal.4th 689 and subsequent cases. The trial court agreed and granted summary judgment for the defendant.

The appeals court affirmed and held that Privette and its progeny hold that when a property owner hires an independent contractor, the property owner is not liable for injuries sustained by the contractor’s employees unless the defendant’s affirmative conduct contributed to the injuries. In this case, the undisputed evidence was that the defendant did not direct how the window washing should be done nor otherwise interfere with the means or methods of accomplishing the work. Accordingly, summary judgment was properly granted.

  1. (Intentional Interference) Intentional interference of contractual relations tort may be successfully brought even against nonparty whose performance is contemplated in sued-over contract. Wayne Redfearn v. Trader Joe’s Company (No B270487 California Courts of Appeal, Second Appellate District, Division Seven, filed February 27, 2018)

Plaintiff, as head of a sales and marketing corporation, acted as a broker between two food producers and a grocer. According to the plaintiff’s complaint for intentional interference with contractual relations, the grocer allegedly began to spread false rumors about plaintiff to the food producer and allegedly threatened to sever ties with the companies if they did not terminate their contracts with the plaintiff to sell to the grocer directly. The trial court sustained the grocer’s demurrer without leave to amend, finding that under PM Group, Inc. v. Stuart led to the conclusion that the grocer “was not a stranger to [plaintiff’s] contracts” and thus could not be liable for the tort.

The appeals court reversed. It found a party to a contract cannot be liable in tort for conspiracy to interfere with its own contract. Even non-contracting parties, though may be immune from interference claims when those parties “[have] an economic interest in” a given contract “if a contract expressly contemplated and depended upon a non-contracting party’s performance”. Here, the plaintiff’s interference claims was found to fall under the PM Group holding, since the grocer could not be a stranger to the contract when the grocer’s performance was necessary to the plaintiff’s contract performance or prospective economic relationship. The appeals court found that the grocer allegedly “pressured” the two producers to stop using plaintiff as a broker which allowed the grocer to purchase food products directly from the producers while eliminating the costs of the brokerage fees. The appeals court stated that the plaintiff had adequately stated a claim for intentional interference with contractual relations.

  1. (MICRA) Notice of intent to file a medical malpractice action is adequately provided to a physician under ‘MICRA’ if mailed to the physician’s address on file with medical board. Maryjane Selvidge v. Sullyvan W. Tang (No. C083427 California Courts of Appeal, Third Appellate District, filed March 5, 2018)

This appeal asked the an appellate court to determine whether mailing a Notice of Intent to file an action to a physician’s address of record with the California Medical Board provided adequate notification of a potential medical malpractice suit under California Code of Civil Procedure section 364. The appeals court determined that it did and accordingly reversed the trial court’s determination to the contrary. The appeals court noted that in Jones v. Catholic Healthcare West “actual” notice was not required by the statute rather the test was whether the plaintiff took adequate steps to achieve actual notice. The appeals court found that upon reviewing relevant case law “when a plaintiff mails a Notice of Intent to file an action to the address a medical professional provided to the Medical Board for the purpose for receiving mail, he or she has provided adequate notice.”

  1. (Torts) Drug treatment facility which undertook reasonable measures to prevent drug use not liable for injuries to voluntary resident who surreptitiously obtained and consumed drugs. Klean W. Hollywood, LLC v. The Superior Court of Los Angeles County (No. B283816 California Courts of Appeal, Second Appellate District, Division Four, filed March 8, 2018)

Defendant, a volunteer drug abuse treatment facility, was sued by plaintiff, who enrolled with the facility to obtain treatment for a drug addiction. Plaintiff blamed the defendant for the injuries he suffered after he smuggled heroin into his room and injected it late one night. The plaintiff claimed that defendant was negligent in failing to prevent him from obtaining heroin and failing to discover him unconscious in his room until the next morning. Defendant moved for summary judgment, contending that the common law doctrine of unclean hands precluded the plaintiff, or anyone who engages in the illegal acts of buying and using illicit drugs, from pursuing a negligence claim. Defendant further contended that the Drug Dealer Liability Act (Health and Safety Code Section 11700 a.k.a. DDLA) prohibits drug users from pursuing claims against parties other than the drug dealers described in the DDLA. The appeals court found that although the DDLA does not categorically preclude claims against third parties, it applied based upon the undisputed facts of this case. Accordingly, the appeals court granted the writ petition filed by defendant.

  1. (Anti-SLAPP) Anti-SLAPP motion properly granted where public employee suit was in response to internal investigation of his alleged misconduct. Thomas Guarino v County of Siskiyou (No. C076629 Super Ct. No. SCCVCV1301013 California Courts Appeal Third Appellate District filed March 29,2018)

Plaintiff was appointed county counsel. Sometime after his appointment, his subordinate complained to the County that the plaintiff harassed her and created a hostile work environment. The County commenced an investigation which found no wrongdoing. The subordinate resigned and field a claim under the Government Claims Act alleging constructive termination which started another investigation. The County then filed an accusation against the plaintiff seeking to remove him for “neglect of duty, malfeasance, or misconduct in office.” The plaintiff resigned and sued the County claiming the County’s investigations effectively forced him out of office, thereby breaching his employment contract. Anti-SLAPP motions filed and granted for the County. The appeals court affirmed. The County was found to have a legal duty pursuant to the Government Code to investigate complaints of the plaintiff’s misconduct and take remedial action to prevent further harassment. Thus, when the County received complaints from the subordinate that the plaintiff created a hostile workplace environment and had been harassing her, its responses were “an official proceeding authorized by law and thus any statements made before or in connection with that investigation arose from protective activity.” Moreover, the plaintiff’s breach of contract claim “did not survive the first required element” that he and the County entered into a contract as “it is well settled in California that public employment is not held by contract but by statute.” The appeals court found that failing to show a likelihood to prevail on the merits that the trial court appropriately dismissed the plaintiff’s complaint via the Anti-SLAPP motion.

  1. (Offer to Compromise) trial courts not err in imposing penalties for plaintiff not accepting defendant’s 998 offers under CCP Section 998. Timed out LLC v 13359 Corp. (Los Angeles County Super. Ct No. BC583739 California Courts of Appeal second Appellate District division one filed March 27,2018)

The issue before the court was whether a trial court erred in interpreting the defendant’s offer to compromise pursuant to Code of Civil Procedure Section 998 to pay “total sum” of monies “exclusive or reasonable costs and attorney’s fees, if any” as preserving plaintiff’s right to seek attorney fees and costs in the subsequent motion. The subject of the offer to compromise was plaintiff’s statutory and common law misappropriation claims. Plaintiff’s statutory claims sought an award of attorney fees and costs to the prevailing party under the Civil Code.

Although the trial court found plaintiff had prevailed on its misappropriation claims, the trial court found that plaintiff had not achieved a more favorable judgment under section 998. The trial court thus awarded plaintiff only its pre-offer attorney fees and costs. The appeals court concluded the trial court’s interpretation of the Offer to Compromise was correct, and the trial court did not err in imposing the penalties for plaintiff’s non-acceptance of defendant’s section 998 offer.

  1. (Trial Procedure) Trial court improperly denied severely ill petitioner’s motion for trial preference under Code of Civil procedure Section 36 (a) by applying mistakenly burdensome evidentiary standard. Ardella Fox v The Superior Court of the City and County of San Francisco. (No. A153672 San Francisco City & County Super Ct. No. CGC-17-276565 California Courts of Appeal First Appellate District Division Four filed March 20, 2018)

Plaintiffs sought a Writ of Mandate compelling the Superior Court to grant their motion for trial preference and set a trial date within 120 days of the Court’s issuance of Writ relief. The Court requested opposition to the petition and advised the parties that it may grant a peremptory writ. Only one of eighteen defendants opposed the plaintiff’s petition. Having reviewed the petition, opposition, and supporting documentation, the Appeals Court granted the writ and directed the Superior Court to schedule a trial within 120 days.

The plaintiff, an eighty-one-year-old suffered severe health problems including Stage IV lung cancer, asbestosis, severe coronary artery disease which would prevent her from effective participation in her case by the time of trial. The Trial Court denied the plaintiff’s motion, claiming that the plaintiff did not sufficiently demonstrate that preference was necessary to prevent prejudice to the plaintiff.

The appeals court granted the petition finding that the plaintiff did not need to prove that death or incapacity would deprive her of a trial, nor was she required to provide a doctor’s declaration regarding her prognosis as the defense claimed. The trial court was not required to evaluate the “veracity” of plaintiff’s health declaration because there was “no genuine dispute that the [plaintiff was] very sick. Moreover, the statute, Code of Civil Procedure Section 36(a) does not require the Court to weigh the interests of the parties. Finally, granting the writ relief was appropriate because the speed and severity of the plaintiff’s decline would likely have rendered a remedy with regard to filing a new motion for trial preference inadequate.

  1. (Torts) Based on special relationship doctrine, colleges owe students duty of care to protect them from foreseeable violence during curricular activities. The Regents of the University v The Superior Court of Los Angeles County. (No. S230568 Ct. App. 2/7 B259424 Los Angeles County Super Ct. No. SC108504 Supreme Court of California filed March 22,2018)

Plaintiff was stabbed by a fellow classmate who suffered from auditory hallucinations and delusions that led him to seek treatment from the defendant university. Despite attempted treatment, the student attacked the plaintiff. Plaintiff sued the university and several employees for negligence arguing they failed to protect her from the student’s foreseeable harmful conduct. After being denied summary judgment, the university sought a writ of mandate from the Court of Appeal, which granted it based on its conclusion that the university did not owe plaintiff a duty of care based on her status as a student or under any other theory of tort law.

This California Supreme Court reversed. It found that considering the unique features of the collegiate environment, universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities. The court remanded the matter back to the trial court for further proceedings.

  1. (Anti-SLAPP) Defendant filing anti-SLAPP motion must move to strike within 60 days of service of the earliest complaint containing the cause of action defendant is attempting to strike. Newport Harbor Ventures, LLC v Morris Cerullo World. (No. S239777 Orange County Ct. App. 4/3 G052660 Super Ct No. 30-2013-00665314 Supreme Court of California filed March 22, 2018

This decision involved an issue as to the timing of when an Anti-SLAPP motion can be brought. The anti-SLAPP statute is intended to resolve quickly and relatively inexpensively meritless lawsuits that threaten free speech on matters of public interest. When it applies, the statute permits the defendant to file a special motion to strike a special cause of action “within 60 days of service of the complaint or, in the Court’s discretion, at any later time upon terms it deems proper.” See, California Code of Civil Procedure Section 425.16(f). Here, the defendants filed a special motion within 60 days of the third amended complaint, but not within 60 days of any earlier complaint. The third amended complaint contained some of the same causes of action as the earlier complaints. The appeals court granted review to decide whether an Anti-SLAPP motion could seek dismissal of causes of action that had been included in the earlier complaints.

The appeals court found that because the Anti-SLAPP statute was designed to resolve these lawsuits early, but not to permit the abuse that delayed motions to strike, it concluded that a defendant must move to strike a cause of action within 60 days of the service of the earliest complaint that contains that cause of action.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

Sincerely,

DUMMIT, BUCHHOLZ & TRAPP

SCOTT D. BUCHHOLZ ESQ.