California Case Summaries

New California Civil Cases

by Monty A. McIntyre, Esq.

Monty A. McIntyre, Esq. is the publisher of California Case Summaries™ (https://cacasesummaries.com) which provides short summaries, organized by legal topic, of every new published civil and family law case helping California lawyers easily master the new case law in their practice areas, get better results and referrals, and grow their law practice. Monthly, quarterly and annual subscriptions are available, as well as annual Practice Area subscriptions in the areas of Employment, Family Law, Real Property and Torts. Monty has been a California civil trial lawyer since 1980 and a member of ABOTA since 1995. He currently works as a fulltime mediator, arbitrator and referee with ADR Services, Inc. conducting Zoom hearings throughout California (to use Monty contact his case manager Haward Cho, haward@adrservices.com, (619) 233-1323). Monty also helps lawyers improve their skills and practices with his Lawyer Master Mentoring™ services (for info visit Monty’s website at https://montymcintyre-law.com).

CALIFORNIA SUPREME COURT

Civil Procedure

Olson v. Doe (2022) _ Cal.5th _ , 2022 WL 121309: The California Supreme Court granted review to decide under what circumstances the litigation privilege of Civil Code section 47(b) applies to contract claims, and whether an agreement following mediation between the parties in an action for a civil harassment restraining order under Code of Civil Procedure, section 527.6, in which they agree not to disparage one another, can lead to liability for statements made in a later unlimited civil lawsuit arising from the same alleged misconduct. The California Supreme Court held that the mediation agreement as a whole and the specific context in which it was reached—a section 527.6 proceeding—precluded defendant/ cross-complainant’s broad reading of the nondisparagement clause. As a result, in opposing plaintiff/cross-defendant’s antiSLAPP motion to strike his cross-complaint, defendant/crosscomplainant could not show the requisite “minimal merit” on a critical element of his breach of contract claim—plaintiff/crossdefendant’s obligation under the agreement to refrain from making disparaging statements in litigation — and therefore he could not defeat plaintiff/cross-defendant’s anti-SLAPP motion. (January 13, 2022.)

Torts

Presbyterian Camp & Conference Centers v. Superior Court of Santa Barbara County (2021) _ Cal.5th _ , 2021 WL 6111380: The California Supreme Court affirmed the Court of Appeal’s denial of a writ petition challenging the trial court’s denial of defendant/ petitioner’s demurrer to a complaint filed by the California Department of Forestry and Fire Protection seeking to recover from defendant over $12 million spent suppressing a wildfire, investigating the fire’s cause, and pursuing reimbursement for the expenses it incurred in doing so. Petitioner argued that it could not be held vicariously liable, under Health and Safety Code sections 13009 and 13009.1, for a fire negligently started by one of its employees. The California Supreme Court held that sections 13009 and 13009.1 incorporate the common law theory of respondeat superior, and a corporation like petitioner can be held vicariously liable for the cost of suppressing fires that its agents or employees negligently or unlawfully set or allowed to escape. (December 27, 2021.)

CALIFORNIA COURTS OF APPEAL

Arbitration

Sellers v. JustAnswer LLC (2021) _ Cal.App.5th _ , 2021 WL 6144075: The Court of Appeal affirmed the trial court’s order denying defendant’s petition to compel arbitration. Plaintiffs filed a class action lawsuit against defendant, alleging it routinely enrolled online consumers like them in automatic renewal membership programs without providing “clear and conspicuous” disclosures and obtaining their “affirmative consent” as mandated by the Automatic Renewal Law (ARL; Business & Professions Code, section 17600 et seq.). Defendant filed a petition to compel individual arbitration claiming that plaintiffs agreed to the “Terms of Service,” which included a

class action waiver and a binding arbitration clause, when they entered their payment information on the website and clicked a button that read, “Start my trial.” The following textual notice appeared in very small print further down the page below the “Start my trial” button: “By clicking ‘Start my trial’ you indicate that you agree to the terms of service and are 13+ years old.” The underlined “terms of service” was a hyperlink to a separate webpage that displayed the 26-page-long terms of service. In a case of first impression, the Court of Appeal observed that the full context of any transaction is critical to determining whether any particular notice is sufficient to put a consumer on inquiry notice of contractual terms contained on a separate, hyperlinked page. Here, the transaction involved a $5 “trial” that automatically enrolled allegedly unwitting consumers in a more expensive recurring monthly membership. This was precisely the type of transaction from which the Legislature intended to protect consumers when it enacted the ARL. The Court of Appeal concluded that the notices on the “Start my trial” screens of defendant’s website were not sufficiently conspicuous to bind plaintiffs, because they were less conspicuous than the ARL’s statutory notice requirements and they were not sufficiently conspicuous under other criteria courts have considered in determining whether a hyperlinked notice to terms of services is sufficient to put a user on inquiry notice of an arbitration agreement. (C.A. 4th, December 30, 2021.)

Attorney Fees

Duff v. Jaguar Land Rover North America, LLC (2022) _ Cal. App.5th _ , 2022 WL 246853: The Court of Appeal reversed the trial court’s order awarding plaintiff attorney fees of $684,250 after he prevailed on one claim for breach of implied warranty under the Song-Beverly Consumer Warranty Act (Song Beverly; Civil Code, section 1790, et seq.), but was only awarded $1 in nominal damages because he failed to prove damages. The Court of Appeal held that in determining who the prevailing party was, it would take a more “pragmatic” and less restrictive approach to assess whether a buyer had prevailed. (See Wohlgemuth v. Caterpillar (2012) 207 Cal. App.4th 1252, 1264; MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1047 (MacQuiddy); Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 149151.) Under this approach, it would not be enough for a buyer to show that they obtained a net monetary recovery. Instead, the trial court should ask: To what extent did the buyer achieve her litigation objectives? By and large, litigation objectives are measured by what the party sought to obtain by filing suit. The Court of Appeal remanded the matter back to the trial court to reconsider the attorney fees issue using the pragmatic, litigation-objective analysis set forth in MacQuiddy. (C.A. 4th, January 27, 2022.)

Attorneys

Falcon Brands, Inc. v. Mousavi & Lee, LLP (2022) _ Cal. App.5th _ , 2022 WL 246851: The Court of Appeal affirmed in part and reversed in part the trial court’s order granting cross-defendant’s anti-SLAPP motion to strike (Code of Civil Procedure, section 425.16) two causes of action in the cross-complaint. The cross-complaint alleged extortion and intentional interference with contract against attorney Amy Mousavi and her law firm, Mousavi & Lee, LLP (collectively Mousavi). Cross-complainant argued Mousavi’s e-mail settlement demands made in an underlying employment action that Mousavi brought against cross-complainant, were not entitled to protection under the anti-SLAPP law because they constituted illegal attempts to force Falcon into settling the underlying matter. The trial court rejected this argument and granted Mousavi’s anti-SLAPP motion. The Court of Appeal disagreed as to the first cause of action for extortion because it concluded that Mousavi’s e-mail settlement demands, when considered in context, were not protected speech in light of the Supreme Court’s ruling in Flatley v. Mauro (2006) 39 Cal.4th 299. Mousavi’s escalating series of threats ultimately transformed what had started as legitimate demands into extortion, and therefore the first cause of action was not protected by the anti-SLAPP law as a result of the well-established “Flatley rule.” The Court of Appeal affirmed as to the second cause of action. That cause of action arose out of Mousavi’s actual revelation of damaging information about cross-complainant to its merger partner. Because the revelations were made in furtherance of Mousavi’s contemplated litigation, the trial court correctly concluded they were protected by the litigation privilege. (C.A. 4th, January 27, 2022.)

Civil Procedure

Chaganti v. Superior Court of Santa Clara County (2021) _ Cal.App.5th _ , 2021 WL 6112575: The Court of Appeal granted a petition for a writ of error coram vobis directing the trial court to vacate its order granting summary adjudication of two causes of action against plaintiff. The writ was granted because the judge who decided the summary adjudication motion was automatically disqualified under Code of Civil Procedure sections 170.1 and 170.5 because he owned stock in excess of $1,500 in AT&T, the parent company of wholly owned subsidiaries Cricket Communications Inc. and New Cingular Wireless PCS LLC who were defendants in the action. The judge’s ownership of stock in the parent corporation with a value in excess of $1,500 was a financial interest within the meaning of section 170.1 in the parent’s wholly owned subsidiaries and required disqualification of the judge where the wholly owned subsidiaries were parties to the action.(C.A. 6th, December 27, 2021.) n