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McIntyre’s Civil Alert


Civil Rights

Johnson v. City of Shelby, Mississippi _ U.S. _ (2014): The U.S. Supreme Court reversed the summary judgment in a case by police officers alleging violation of their due process rights. No heightened pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke 42 U.S.C. §1983 expressly in order to state a claim. (November 10, 2014.)



Conservatorship of Townsend (2014) _ Cal.App.4th _ , 2014 WL 6406740: The Court of Appeal dismissed the appeal because it was not timely filed within 60 days, and the filing of a motion to vacate the judgment with the temporary judge, instead of with the clerk of the court as required by the Code of Civil Procedure and the Rules of Court, failed to extend the time for filing the appeal. (C.A. 2nd, November 17, 2014.)


Garden Fresh Restaurant Corporation v. Superior Court (Moreno) (2014) _ Cal.App.4th _ , 2014 WL 6306143: The Court of Appeal granted a writ petition after the trial court granted a motion to compel arbitration but left it to the arbitrator to decide whether an individual or a class action would proceed in arbitration. Where an arbitration agreement is silent on the issue of whether class and/or representative arbitration is available, the court, not the arbitrator, should determine whether the agreement contemplates bilateral arbitration only, or whether the agreement also contemplates that class and/or representative claims may be pursued in the arbitration. (C.A. 4th, November 17, 2014.)

Willis v. Prime Healthcare Services, Inc. (2014) _ Cal.App.4th _ , 2014 WL 6065825: The Court of Appeal reversed the trial court’s denial of a motion to compel arbitration in a class action alleging California Labor Code violations for failure to pay minimum wages, failure to pay all wages owed upon termination, and civil penalties for inaccurate wage statements. The arbitration clause was in the individual agreement, not the collective bargaining agreement. The Court of Appeal concluded the decision in J.I. Case Co. v. NLRB (1944) 321 U.S. 332 did not permit it to refuse to enforce the arbitration clause in the individual agreement which was subject to the Federal Arbitration Act. (C.A. 2nd, November 14, 2014.)

Attorney Fees

David S. Karton Law Corporation v. Dougherty (2014) _ Cal.App.4th _ , 2014 WL 6065707: The Court of Appeal reversed the trial court’s order awarding plaintiff $1,161,565 in attorney fees and $6,266.56 in costs as the prevailing party. The Court of Appeal found that because the arbitration panel and trial court both concluded that defendant had fully paid all fees owing to plaintiff, defendant was the prevailing party under Civil Code section 1717 and Code of Civil Procedure section 1032. (C.A. 2nd, November 14, 2014.)

Laffitte v. Robert Half International Inc. (2014) _ Cal.App.4th _ , 2014 WL 5470463: The Court of Appeal affirmed the class action settlement including attorney fees of approximately $6.3 million. The trial court’s method for calculating the attorney fees was proper, and the award was reasonable. Although the lodestar method is the primary method for calculating attorney fees, the percentage approach may be proper where there is a common fund. (C.A. 2nd, Filed October 29, 2014, published November 21, 2014.)

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2014) _ Cal.App.4th _ , 2014 WL 6488418: The Court of Appeal affirmed in part and reversed in part the trial court’s rulings denying attorney fees to the prevailing defendants. The trial court properly denied defendants’ attorney fees under the repurchase contract but improperly denied fees under the later option agreement. Because both parties shared in drafting the illegal repurchase agreement, the parties were in pari delicto, the repurchase agreement was entirely void and unenforceable, and the trial court properly denied defendants’ motion to enforce the attorney fee clause in that agreement. However, defendants’ successful novation defense entitled them to attorney fees as provided for in the later option agreement. (C.A. 1st, November 20, 2014.)

Civil Procedure (Anti-SLAPP)

Squires v. City of Eureka (2014) _ Cal.App.4th _ , 2014 WL 6066117: The Court of Appeal affirmed the trial court’s orders granting an Anti-SLAPP motion against plaintiffs’ complaint alleging multiple causes of action against the City. Plaintiffs’ causes of action arose from protected activity, and plaintiffs failed to demonstrate a probability of prevailing on the merits. (C.A. 1st, filed October 17, 2014, published November 14, 2014.)

Class Action

In re Walgreen Company Overtime Cases (2014) _ Cal.App.4th _ , 2014 WL 5863193: The Court of Appeal affirmed the trial court’s denial of a class certification motion in a meal break case. Because the trial court applied the proper criteria and analysis to analyze the motion, the deferential abuse of discretion standard of review applied. Plaintiff’s motion was properly denied because plaintiff’s proffered proof in the form of expert opinion, emails and declarations was inadequate. (C.A. 2nd, filed October 23, 2014, published November 13, 2014.)

Martinez v. Joe’s Crab Shack Holdings (2014) _ Cal.App.4th _ , 2014 WL 5804110: The Court of Appeal reversed the trial court’s denial of class certification after considering the recent decision of Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 28 (Duran). Based upon the decisions in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531, and Duran, classwide relief remains the preferred method of resolving wage and hour claims, even those in which the facts appear to present difficult issues of proof. By refocusing its analysis on the policies and practices of the employer and the effect those policies and practices have on the putative class, as well as narrowing the class if appropriate, the Court of Appeal concluded that the trial court might find class analysis a more efficient and effective means of resolving plaintiffs’ overtime claim. (C.A. 2nd, November 10, 2014.)

Insurance (Bad Faith, Underinsured Motorist)

Elliott v. Geico Indemnity Company (2014) _ Cal.App.4th _ , 2014 WL 6466952: The Court of Appeal affirmed the trial court’s summary judgment in favor of Geico in a wrongful death action because plaintiff recovered more than Geico’s $100,000 underinsured policy limit. Plaintiff’s husband was killed when his motorcycle was struck by a drunk driver returning home from her job at a restaurant and bar. The driver’s carrier paid $15,000, and the bar and restaurant’s carrier paid $250,000 to settle the claim. The drunk driver had consumed alcohol during her work before the accident. The Court of Appeal found the Geico policy unambiguously allowed Geico to deduct from the underinsured motorist coverage limits “the amount paid to the insured by or for any person or organization that may be held legally liable for the injury.” Geico owed nothing after it properly deducted the $265,000 in settlement payments from the underinsured motorist coverage limits. (C.A. 3rd, November 19, 2014.)

Graciano v. Mercury General Corporation (2014) _ Cal.App.4th _ , 2014 WL 5860297: The Court of Appeal reversed a judgment for plaintiff for bad faith denial of a policy limit settlement demand, and directed the trial court to instead enter judgment in favor of defendants. Eleven days after the accident plaintiff’s attorney sent a policy limit demand letter to the carrier with a ten-day time limit. The letter identified the incorrect driver of the car. The carrier initially determined the driver identified by counsel did not have coverage. However, on the tenth day after the demand letter, the carrier confirmed another insured person was the driver, they had $50,000 of coverage, and approved a policy limit settlement offer. The adjuster was not able to get plaintiff’s counsel on the phone that day to orally convey the offer, was not able to fax the offer to counsel because counsel had turned off her fax machine, and mailed the policy limit offer to counsel. The Court of Appeal concluded there was no evidence to support the verdict that the carrier acted in bad faith by unreasonably failing to settle the claim. (C.A. 4th, filed October 17, 2014, published November 12, 2014.)


Scott v. C. R. Bard, Inc. (2014) _ Cal.App.4th _ , 2014 WL 6475366: The Court of Appeal affirmed the judgment for plaintiff for defendant’s negligence in manufacturing and selling polypropylene mesh kits to treat women with pelvic organ prolapse. The Court of Appeal concluded that the trial court properly gave three jury instructions on negligence regarding negligent design, the basic standard of care, and the standard of care for a product designer. (C.A. 5th, November 19, 2014.)

Monty A. Mcintyre

Monty A. McIntyre follows his passions for the law and serving others by serving as a mediator, arbitrator and motion referee to help individuals, businesses and lawyers obtain rapid, reasonable resolution of disputes. He is also the Publisher of McIntyre’s California Civil Law Update and can be reached at 619-990-4312 or monty.mcintyre@gmail.com.

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About the Author: Monty A. McIntyre follows his passions for the law and serving others by serving as a mediator, arbitrator and motion referee to help individuals, businesses and lawyers obtain rapid, reasonable resolution of disputes. He is also the Publisher of McIntyre’s California Civil Law Update and can be reached at 619-990-4312 or monty.mcintyre@gmail.com.

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