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McIntyre’s Civil Alert

Organized Succinct Summaries
by Monty A. McIntyre, Esq.


Heffernan v. City of Paterson, New Jersey _ U.S. _ (2016), 2016 WL 1627953: The United States Supreme Court reversed the district court and the Third Circuit Court of Appeals. The First Amendment not only prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity, it also prohibits dismissal or demotion based upon an incorrect belief that the employee had engaged in protected political activity. (April 26, 2016.)


Civil Procedure (Vexatious Litigants)
John v. Superior Court (Chan) (2016) _ Cal.4th _ : The California Supreme Court affirmed the Court of Appeal. Code of Civil Procedure section 391.7’s prefiling requirements do not apply to a self-represented litigant previously declared a vexatious litigant seeking to appeal an adverse judgment or interlocutory order in an action where he or she was the defendant. (May 5, 2016.)

Medical Malpractice
Flores v. Presbyterian Intercommunity Hospital (2016) _ Cal.4th _ : The California Supreme Court reversed the judgment of the Court of Appeal, finding that the trial court had properly sustained a demurrer without leave to amend because the applicable statute of limitations was Code of Civil Procedure section 340.5 not section 335.1. Because plaintiff’s injury resulted from alleged negligence in the use and maintenance of equipment needed to implement a doctor’s order  concerning her medical treatment, plaintiff’s claim was for professional negligence not ordinary negligence. (May 5, 2016.)


Espejo v. Southern California Permanente Medical Group (2016) _ Cal.App.4th _ , 2016 WL 1613487: The Court of Appeal reversed the trial court’s order denying a petition to compel arbitration of wrongful termination and whistleblower
retaliation claims. The Court of Appeal concluded that defendants met their initial burden by attaching to their petition a copy of the purported arbitration agreement bearing plaintiff’s electronic signature. Once plaintiff challenged the
validity of that signature in his opposition, defendants were then required to establish by a preponderance of the evidence that the signature was authentic. The trial court erred in striking a supplemental declaration offered by defendants on this issue on the basis that it was untimely because it had to be filed with the original petition papers. (C.A. 2nd, April 22, 2016.)

Osborne v. Todd Farm Service (2016) _ Cal.App.4th _ , 2016 WL 1756753: The Court of Appeal affirmed the trial court’s order dismissing plaintiff’s complaint for personal injuries during a jury trial as a sanction for the repeated violations
by plaintiff’s counsel of the court’s in limine orders excluding hearsay and opinion testimony. The terminating sanction was an appropriate response to counsel’s repeated flagrant misconduct and was consistent with the trial court’s inherent authority to compel obedience to its judgments, orders and process. (C.A. 2nd, May 2, 2016.)

Civil Procedure (Anti-SLAPP, Costs, 998 Offers, Vexatious Litigant)
Abuemeira v. Stephens (2016) _ Cal.App.4th _ , 2016 WL 1702427: The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike relating to the distribution of a video-recording of a private brawl. A videorecording
of the brawl, no matter how wide its distribution, was far removed from a citizen’s constitutional right of petition or free speech involving a public issue. The trial court properly denied the anti-SLAPP motion because defendant’s conduct
did not involve an act in furtherance of his constitutional right of petition or free speech in connection with a public issue. (C.A. 2nd, April 27, 2016.)
Boxer v. City of Beverly Hills (2016) _ Cal.App.4th _ , 2016 WL 1678864: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend in a case alleging inverse condemnation against defendant due to impairment of views from plaintiffs’ backyards caused by the planting of coastal redwood trees by defendant in a park. The demurrer was properly sustained because plaintiffs alleged only impairment of their views and a speculative risk of fire danger, neither of which constituted a taking of their property. (C.A. 2nd, April 26, 2016.) Goodrich v. Sierra Vista Regional Medical Center (2016) _ Cal. App.4th _ , 2016 WL 1702035: The Court of Appeal affirmed the trial court’s determination that plaintiff was a vexatious litigant under Code of Civil Procedure section 391(b)(2) and (3). After the trial court denied plaintiff’s petition for writ of administrative mandate challenging the decision of defendant to terminate her from its medical staff, plaintiff, acting in propria persona, filed three motions attempting to relitigate the court’s final judgment on the petition. The Court of Appeal concluded that substantial evidence supported the finding. After it denied the second motion, the trial court admonished plaintiff that she could be declared a vexatious litigant “if similar unsubstantiated motions continue to be filed without any reasonable likelihood of success.” Plaintiff, however, failed to heed the admonition. (C.A. 2nd, April 27, 2016.)
J-M Manufacturing Company, Inc. v. Phillips and Cohen LLP (2016) _ Cal.App.4th _ , 2016 WL 1757286: The Court of Appeal reversed the trial court’s order denying an anti-SLAPP motion to strike. Plaintiff sued defendant after it issued a celebratory press release following a verdict in false claims act litigation in which the jury found that plaintiff had knowingly misrepresented to defendant’s governmental clients over a 10-year period that its polyvinyl chloride pipe had been manufactured and tested in a manner that assured it had the strength and durability required by applicable industry standards. Plaintiff conceded that the action arose from protected activity. The trial court erred because plaintiff could not establish a likelihood that it would prevail on the merits.
Defendant’s description of the evidence at trial and the jury’s special verdict in the press release fell comfortably within the permissible degree of flexibility and literary license afforded communications to the media concerning judicial proceedings. The substance of the report was accurate and the release was absolutely privileged under Civil Code section 47(d). (C.A. 2nd, May 2, 2016.)
Sanford v. Rasnick (2016) _ Cal.App.4th _ , 2016 WL 2585250: The Court of Appeal reversed the trial court’s order finding defendants’ 998 offer was valid and awarding defendants some expert witness and other costs. The trial court also erred in denying plaintiff attorney service charges and court-ordered mediation costs. The 998 offer was invalid because it required plaintiff to enter into a “settlement agreement and general release.” Moreover, no settlement agreement or release was attached to the 998 offer. The trial court erred when it did not respond to plaintiff’s counsel’s request to have the court explain how its discretion was exercised. The trial court also erred in stating that the two cost items were not allowed under the statute. (C.A. 1st, April 25, 2016.)

Hearn Pacific Corporation v. Second Generation Roofing Inc. (2016) _ Cal.App.4th _ , 2016 WL 1757290: The Court of Appeal reversed the trial court’s order denying a request to amend the subcontractor’s prevailing party attorney fee judgment against the general contractor to add the insurance carrier for the general contractor. Because the carrier had obtained an assignment of the general contractor’s contractual indemnity rights and was controlling the litigation, it was a real party in interest and the trial court abused its discretion in refusing to amend the judgment. (C.A. 1st, May 2, 2016.)

McGee v. Balfour Beatty Construction, LLC (2016) _ Cal.App.4th _ , 2016 WL 1449591: The Court of Appeal reversed a portion of the trial court’s order sustaining a demurrer without leave to amend. The gravamen of plaintiffs’ lawsuit was that lease-leaseback agreements entered into by defendants were a sham to avoid the competitive bid process and were void. The trial court properly sustained the demurrer to plaintiffs’ claims that the school district was required to seek competitive bids. The school district complied with the requirements of section Education Code section 17406. The plain language of section 17406 does not require use of the competitive bid process. While the Legislature has amended the statute, it has not amended it to require competitive bidding in lease-leaseback agreements. The trial court, however, erred in sustaining a demurrer to the allegations of conflict of interest under Government Code section 1090 because plaintiffs had alleged a cause of action for conflict of interest. (C.A. 2nd, filed April 12, 2016, published May 4, 2016.)

Employment (Arbitration, Rest Breaks)
Espejo v. Southern California Permanente Medical Group (2016) _ Cal.App.4th _ , 2016 WL 1613487: See summary above under Arbitration.
Rodriguez v. E.M.E., Inc. (2016) _ Cal.App.4th _ , 2016 WL 1613803: The Court of Appeal reversed part of the trial court’s order granting summary adjudication for defendant, related to plaintiff’s allegation that defendant failed to provide required rest breaks. The Court of Appeal found that section 12(A) of Wage Order 1-2001 obliged defendant to provide a 10-minute rest break in the middle of the work periods occurring before and after the 30-minute meal break insofar as practicable. Defendant was obliged to demonstrate the absence of triable issues regarding its departure from the preferred rest break schedule set forth in Wage Order 1-2001. While defendant’s evidence was sufficient to shift the burden on summary adjudication to plaintiff, plaintiff’s responsive showing raised triable issues requiring the denial of summary adjudication. (C.A. 2nd, April 22, 2016.)

Government (Inverse Condemnation)
Boxer v. City of Beverly Hills (2016) _ Cal.App.4th _ , 2016 WL 1678864: See summary above under Civil Procedure.
California Public Records Research, Inc. v. County of Stanislaus (2016) _ Cal.App.4th _ , 2016 WL 1730087: The Court of Appeal reversed the trial court’s order denying a writ petition that sought to compel defendant to reduce the fees it charged for copies of official records. The Court of Appeal concluded that the record lacked evidence showing that the fees charged reflected defendant’s actual costs and defendant’s board of supervisors abused its discretion when it set the copying fees. (C.A. 5th, April 28, 2016.)
McGee v. Balfour Beatty Construction, LLC (2016) _ Cal.App.4th _ , 2016 WL 1449591: See summary above under Education.

Cummins Corporation v. United States Fidelity and Guaranty Company (2016) _ Cal.App.4th _ , 2016 WL 1726079: The Court of Appeal affirmed the trial court’s order sustaining, without leave to amend, defendants’ demurrer to a complaint for declaratory relief. The parent company of the insured company lacked standing to bring the declaratory relief action against the carriers. (C.A. 1st, filed March 30, 2016, published April 28, 2016.)
Hearn Pacific Corporation v. Second Generation Roofing Inc. (2016) _ Cal.App.4th _ , 2016 WL 1757290: See summary above under Construction.

Intellectual Property
Ryder v. Lightstorm Entertainment, Inc. (2016) _ Cal.App.4th _ , 2016 WL 1615574: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendants James Cameron and Lightstorm Entertainment, Inc. on claims that defendants fraudulently expressed interest in developing plaintiff’s science fiction story KRZ and used parts of that story in Cameron’s 2009 film Avatar. The Court of Appeal found that plaintiff’s contract and fiduciary duty claims failed because it found no similarity between the projects as a matter of law.
Plaintiff’s fraud claims failed because he did not offer evidence raising a triable issue of material fact. (C.A. 2nd, filed March 25, 2016, published April 22, 2016.)

Li v. Yan (2016) _ Cal.App.4th _ , 2016 WL 1757282: The Court of Appeal affirmed the trial court’s order compelling the judgment debtor to produce income tax returns pursuant to a subpoena duces tecum at a judgment debtor exam. (C.A. 1st, May 2, 2016.)

Real Property
Daniels v. Select Portfolio Servicing, Inc. (2016) _ Cal.App.4th _ , 2016 WL 1688595: The Court of Appeal reversed the trial court’s orders sustaining a demurrer and granting a motion for judgment on the pleadings. When a lender acquires by assignment a loan being administered by a loan servicer, the lender may be liable to the borrower for misrepresentations made by the loan servicer, as the lender’s agent, after that assignment. And, a loan servicer may owe a duty of care to
a borrower through application of the factors in Biakanja v. Irving (1958) 49 Cal.2d 647, even though its involvement in the loan does not exceed its conventional role. (C.A. 6th, April 26, 2016.)

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

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Filed Under: Featured StoriesPersonal Development

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

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