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McIntyre’s Civil Alert.Organized Succinct Summaries.

CALIFORNIA SUPREME COURT

INSURANCE (CUMIS COUNSEL)
Hartford Casualty Insurance Company v. J.R. Marketing, LLC (2015) _ Cal.4th _ , 2015 WL 4716917: The California Supreme Court reversed the Court of Appeal ruling that Cumis fees that were excessive, unreasonable, and unnecessary could not be recovered by the carrier from Cumis counsel. In this case, the commercial general liability carrier initially refused to defend its insured against a third-party lawsuit. Compelled by a court order, the insurer subsequently provided independent counsel (Cumis counsel), under a reservation of rights, to defend its insured in the third-party suit. The court order required the insurer to pay all “reasonable and necessary defense costs,” but expressly preserved the insurer’s right to later challenge and recover payments for “unreasonable and unnecessary” charges by counsel. The Supreme Court concluded that, under the circumstances of this case, the insurer could seek reimbursement directly from Cumis counsel. If Cumis counsel, operating under the court order, sought and received from the insurer payment for time and costs that were fraudulent, or were otherwise manifestly and objectively useless and wasteful when incurred, then Cumis counsel would have been unjustly enriched at the insurer’s expense. (August 10, 2015.)

TORTS (GOVERNMENT TORT CLAIMS)
Cordova v. City of Los Angeles (2015) _ Cal.4th _ , 2015 WL 4758177: The California Supreme Court reversed the Court of Appeal ruling that affirmed a trial court summary judgment for defendant on the basis that the allegedly dangerous condition (magnolia trees planted in the center median on Colorado Boulevard) did not cause the conduct of the third-party driver that caused the accident. The California Supreme Court ruled that Government Code section 835 did not require the plaintiffs to show that the allegedly dangerous condition caused not only their decedents’ fatal injuries, but also the third-party conduct that precipitated the accident. (August 13, 2015.)

CALIFORNIA COURTS OF APPEAL ATTORNEYS
Coldren v. Hart, King and Coldren, Inc. (2015) _ Cal.App.4th _ , 2015 WL 4640041: The Court of Appeal reversed the trial court’s order disqualifying counsel for defendants on the basis that there was an unwaivable actual conflict between the two defendants. The Court of Appeal ruled that plaintiff lacked standing to object to defendants’ choice of counsel, and also found that there was no actual conflict between the two defendants, because plaintiff’s action was a direct action not a derivative action. (C.A. 4th, filed July 13, 2015, published August 5, 2015.)

EDUCATION
Newark Unified School District v. Superior Court (Brazil) (2015) _ Cal.App.4th _ , 2015 WL 4594095: The Court of Appeal granted a writ petition. In order to harmonize Government Code section 6254.5 with Evidence Code section 912, which has been construed not to effect a waiver of the attorney-client and work product privileges from an inadvertent disclosure, the Court of Appeal construed section 6254.5 to not apply to the inadvertent release of privileged documents. (C.A. 1st, July 31, 2015.)

EMPLOYMENT
Connor v. First Student, Inc. (2015) _ Cal.App.4th _ , 2015 WL 4768123: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment on the basis of the holding in Ortiz v. Lyon Management Group, Inc. (2007) 157 Cal.App.4th 604 (Ortiz). The Court of Appeal reversed because it disagreed with the analysis in Ortiz. The Court of Appeal found that nothing in either the Investigative Consumer Reporting Agencies Act (ICRAA, Civil Code section 1786 et seq.) or the Consumer Credit Reporting Agencies Act (Civil Code section 1785.1 et seq.) precluded the application of both acts to information that relates to both character and creditworthiness, and concluded that the ICRAA was not unconstitutionally vague as applied to such information. (C.A. 2nd, August 12, 2015.)

EVIDENCE
Newark Unified School District v. Superior Court (Brazil) (2015) _ Cal.App.4th _ , 2015 WL 4594095: See summary above under Education.

PUNITIVE DAMAGES
Soto v. BorgWarner Morse TEC Inc. (2015) _ Cal.App.4th _, 2015 WL 4323186: The Court of Appeal affirmed in part and reversed in part a judgment following a jury trial in a mesothelioma wrongful death case. The Court of Appeal affirmed the trial court’s order granting a partial nonsuit as to the claims of a grandson under Code of Civil Procedure section 377.60(c). The trial court properly ruled that plaintiffs had failed to produce sufficient evidence for a reasonable jury to conclude that the grandson relied upon his grandfather for one-half or more of the financial support for his necessaries of life. The Court of Appeal also concluded that there was insufficient evidence of defendant’s financial condition to enable the jury to make an intelligent assessment of defendant’s ability to pay a punitive damages award. The Court of Appeal therefore reversed the $32 million award of punitive damages and found that no retrial was required on this issue. The Court of Appeal affirmed noneconomic damage awards of $2 million to each daughter, and also affirmed the jury’s finding that non-party American Smelting and Refinery Company was 25 percent responsible for the mesothelioma. (C.A. 2nd, filed July 15, 2015, published August 5, 2015.)

TORTS
Doe v. San Diego-Imperial Council (2015) _ Cal.App.4th _ , 2015 WL 4600256: The Court of Appeal upheld the trial court’s ruling sustaining a demurrer without leave to amend to a complaint alleging childhood sexual molestation, because plaintiff failed to file a certificate of merit as required by Code of Civil Procedure section 340.1. The tolling provisions of Insurance Code section 11583 did not relieve plaintiff of the requirement of filing a certificate of merit. (C.A. 4th, July 31, 2015.)

Soto v. BorgWarner Morse TEC Inc. (2015) _ Cal.App.4th _, 2015 WL 4323186: See summary above under Punitive Damages.

TRIAL (MIXED ISSUES OF EQUITY AND LAW)
Darbun Enterprises, Inc. v. San Fernando Community Hospital (2015) _ Cal.App.4th _ , 2015 WL 4749021: The Court of Appeal reversed the trial court’s order granting defendant’s motion for judgment notwithstanding the verdict (JNOV). The trial proceeded in two phases. The equity phase was held first, to determine whether the equitable remedy of specific performance was available should plaintiff prevail. The court reserved the issues of breach of lease and resulting contract damages for the jury. The trial court did not make a decision at the end of the equity phase. After plaintiff presented its case in the jury trial, the trial court granted defendant’s motion for nonsuit as to the specific performance claim only. The jury later returned a verdict for plaintiff and awarded damages of $294,819.06. The trial court later granted defendant’s motion for JNOV based upon its earlier nonsuit ruling on the specific performance claim. The Court of Appeal ruled that, in cases involving mixed issues of equity and law, the trial court may not act as a factfinder on issues it specifically reserves for jury determination. In granting the JNOV, the court improperly transformed its equitable finding of unenforceability as to the specific performance claim into a finding of unenforceability as to the legal issue of damages. The Court of Appeal found there was substantial evidence to support the jury verdict for plaintiff on the breach of lease and damages claim, and reversed the judgment and remanded the case to the trial court for further proceedings consistent with the opinion. (C.A. 2nd, August 12, 2015.) See Ca. opinions at: http://www.courts.ca.gov/opinions.htm.

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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