California Case Summaries

New California Civil Cases

by Monty A. McIntyre, Esq.

These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries (one paragraph), organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on either a monthly, quarterly or annual basis. Monty also offers specialized practice area annual summaries in the areas of Employment, Family Law, Real Property and Torts. For more information go to https://cacasesummaries.com. A California civil trial lawyer since 1980, a member of ABOTA since 1995, a past president of the SDCBA and San Diego ABOTA, and also an expert Zoom user, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases throughout California in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. Web: https://www. adrservices.com/neutrals/mcintyre-monty/ To schedule a matter, contact Monty’s case manager Haward Cho, (619) 233-1323 or haward@adrservices.com.

CALIFORNIA SUPREME COURT

Civil Procedure

Shalabi v. City of Fontana (2021) _ Cal.5th _ , 2021 WL 2908526: The California Supreme Court affirmed the judgment of the Court of Appeal concluding that plaintiff’s action under 42 United States Code section 1983, for the wrongful death of his father, was not barred by the two-year statute of limitations. Plaintiff was a minor when his father was killed. Code of Civil Procedure section 352(a) provides that when a minor is injured, the statute of limitations for any claim arising from the injury is tolled until the minor reaches age 18. The California Supreme Court ruled that, pursuant to Code of Civil Procedure section 12, an individual’s 18th birthday is excluded when calculating the applicable limitations period. The California Supreme Court also ruled that its earlier decision in Ganahl v. Soher (1884) 2 Cal.Unrep. 415 (Ganahl I) was not binding because the California Supreme Court granted a hearing in bank in Ganahl I and issued a subsequent superseding decision, thereby vacating Ganahl I. (July 12, 2021.)

Employment

Ferra v. Loews Hollywood Hotel, LLC (2021) _ Cal.5th _ , 2021 WL 2965438: The California Supreme Court reversed the judgment of the Court of Appeal concluding that the employer did not have to include nondiscretionary payments when calculating the amount to pay their employee for noncompliant meal or rest breaks in accordance with her “regular rate of compensation” as required by Labor Code section 226.7(c). The California Supreme Court held that the term “regular rate of compensation” in section 226.7(c) has the same meaning as “regular rate of pay” in Labor Code section 510(a) and encompasses not only hourly wages but all nondiscretionary payments for work performed by the employee. (July 15, 2021.)

CALIFORNIA COURTS OF APPEAL

Arbitration

Law Finance Group, LLC v. Key (2021) _ Cal.App.5th _ , 2021 WL 3240276: The Court of Appeals reversed the trial court’s order vacating an arbitration award in favor of claimant awarding it simple interest in the amount of $778,351 and costs and attorney fees in the amount of $838,864 as the prevailing party. Respondent had borrowed $2.4 million from claimant to finance her probate litigation. After respondent prevailed in that litigation, she repaid claimant the principal of $2.4 million but refused to pay interest claiming the loan was a consumer loan that violated the California Financing Law (Financial Code, section 22000 et seq.). A panel of three arbitrators found that some of the loan terms were invalid but otherwise enforced the loan agreement. The panel served the modified award on September 18, 2019. On October 1, 2019, claimant filed a petition to confirm the award. Respondent filed a motion to vacate the award 130 days after the service of the modified award, claiming the arbitrators exceeded their authority by finding that the loan was a consumer loan but nevertheless enforcing some of the terms of the loan agreement rather than finding it void. Nine days later, respondent filed a response to claimant’s petition to confirm the award that raised the same argument. The Court of Appeal ruled that both respondent’s motion to vacate the award and her response to the motion to confirm the award were untimely because they were not filed within 100 days of the service of the award as required by Code of Civil Procedure sections 1288 and 1288.2. (C.A. 2nd, July 30, 2021.)

Remedial Construction Services v. Aecom (2021) _ Cal.App.5th _ , 2021 WL 2431256: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to compel arbitration. Plaintiff, a subcontractor on a construction project, sued defendant, the general contractor. Defendant moved to compel arbitration based upon an arbitration agreement in the contract (prime agreement) between defendant and the property owner. The subcontract between plaintiff and defendant incorporated the 151-page prime agreement including the arbitration agreement. The trial court properly ruled that the subcontract’s incorporation of the voluminous prime agreement containing an arbitration agreement between other parties was insufficient to subject plaintiff to arbitration of its claims against defendant. In the absence of a clear agreement to submit a dispute to arbitration, courts will not infer a waiver of a party’s jury trial rights. (See Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59.) (C.A. 2nd, June 15, 2021.)

Attorney Fees

Harris v. Rojas (2021) _ Cal.App.5th _ , 2021 WL 3046421: The Court of Appeal affirmed the trial court’s order concluding there was no prevailing party and awarding no attorney fees. The action was filed by the commercial tenant plaintiff against his landlord who cross-complained back against the tenant. The litigation continued for nearly three years and culminated in a seven-day jury trial. Plaintiff asked the jury for $200,000 and the jury gave him $6,450 on his contract claim. Plaintiff’s lawyers demanded $296,744.68 in attorney fees from defendant. The trial court denied the fee request on the ground there was no prevailing party. The Court of Appeal affirmed, concluding that when the demand was $200,000 and the verdict was $6,450 or less, the trial judge had discretion to decide the “victory” was pyrrhic and nobody won. (See Hsu v. Abbara (1995) 9 Cal.4th 863, 875.) (C.A. 2nd, July 20, 2021.)

Pasternack v. McCullough (2021) _ Cal.App.5th _ , 2021 WL 2633050: The Court of Appeal affirmed the trial court’s order awarding attorney fees of $146,010 to defendant after he prevailed in an anti-SLAPP motion to strike. Plaintiff argued the fee award was excessive because the awarded fees were higher than the insurance defense rate (a package rate of $140 per hour) actually paid to the defense firm by the carrier. Defendant’s motion for fees had requested a fee award of $330,420. The Court of Appeal held a trial court has discretion to award an hourly rate under the lodestar method that exceeds the rate that was actually incurred or paid. The trial court properly determined the market rate for experienced appellate lawyers in Los Angeles County and exercised its discretion to not so narrowly focus on the insurance defense package rate agreed to in this matter. (C.A. 2nd, filed June 7, 2021, published June 25, 2021.) Cahill Construction Co., Inc. v. Superior Court (2021) _ Cal. App.5th _ , 2021 WL 3030225: The Court of Appeal denied a writ petition seeking to overturn the trial court’s order denying a defendant’s request to depose the plaintiff for more than 14 hours in an action against 105 defendants alleging 11 causes of action arising out of plaintiff Edward Richards’ alleged asbestos exposure that sought both compensatory and punitive damages. Ruling on an issue of first impression, the Court of Appeal held that a trial court cannot grant deposition time in excess of the 14-hour cap set forth in Code of Civil Procedure section 025.295(b)(2). (C.A. 1st, July 19, 2021.)

Employment

Levanoff v. Dragas (2021) _ Cal.App.5th _ , 2021 WL 2621360: The Court of Appeal affirmed the trial court’s conclusion, following a bench trial, regarding a subclass of dual rate employees who allegedly were underpaid by defendants for overtime hours worked, that defendants did not violate California employment law by using the rate-in-effect method for calculating the overtime rate of pay and its subsequent order decertifying the dual rate overtime subclass and dismissing the claims under the Labor Code Private Attorneys General Act of 2004 (PAGA; Labor Code section 2698 et seq.). Defendants did not violate California law by using the rate-in-effect method for calculating the regular rate of pay for purposes of establishing the overtime rate of pay for dual rate employees. California law does not mandate the use of the weighted average method, and defendants’ dual rate employees, including plaintiffs, overall received net greater overtime pay under the rate-in-effect method than they would have received under the weighted average method. Because defendants did not violate California law by using the rate-in-effect method, the trial court did not err by decertifying the dual rate overtime subclass and dismissing the dual rate overtime PAGA claim. (C.A. 4th, June 25, 2021.)

Torts

Swanson v. The Marley-Wylain Co. (2021) _ Cal.App.5th _ , 2021 WL 2282641: The Court of Appeal reversed the judgment for plaintiff, following a jury trial, awarding plaintiff $5,489,688.68 in an action for injuries due to exposure to asbestos. Earlier in the case the Court of Appeal granted a peremptory writ of mandate directing the trial court to grant a motion for an order that Michigan law applied to plaintiff’s claims against defendant. The evidence of causation presented at trial would have been sufficient under Michigan law to support the jury’s verdict. But, the trial court’s instructions to the jury regarding causation reflected California law, not Michigan law. The Court of Appeal concluded that the trial court improperly instructed the jury on Michigan law and that error was prejudicial, and therefore reversed the judgment and remanded to the trial court for retrial. (C.A. 2nd, filed June 4, 2021, published June 24, 2021.) n