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McIntyre’s Civil Alert. Organized Succinct Summaries by Monty A. McIntyre, Esq.

UNITED STATES SUPREME COURT
Employment
(Title VII Discrimination)
Green v. Brennan _ U.S. _ (2016), 2016 WL 2945236: The United States Supreme Court vacated the judgment of the Tenth Circuit Court of Appeals and remanded for further proceedings. When an employee resigns in the face of intolerable discrimination and claims they have been constructively discharged, under Title VII, the matter alleged to be discriminatory includes the employee’s resignation, and the 45-day clock for a constructive discharge begins running only after the employee resigns. (May 23, 2016.)

CALIFORNIA SUPREME COURT
Torts (Asbestos)
Webb v. Special Electric Company, Inc. (2016) _ Cal.4th _ , 2016 WL 2956882: The California Supreme Court affirmed the Court of Appeal’s ruling reversing the trial court’s entry of a judgment notwithstanding the verdict in an asbestos case because substantial evidence demonstrated that defendant breached a duty to warn Johns-Manville Corporation (Johns-Manville) and foreseeable downstream users like plaintiff about the risks of asbestos exposure. The California Supreme Court formally adopted the sophisticated intermediary doctrine as expressed in the Restatement Second of Torts. Under this rule, a supplier may discharge its duty to warn end users about known or knowable risks in the use of its product if it: (1) provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and (2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product. Because the sophisticated intermediary doctrine is an affirmative defense, the supplier bears the burden of proving that it adequately warned the intermediary, or knew the intermediary was aware or should have been aware of the specific hazard, and reasonably relied on the intermediary to transmit warnings. Defendant forfeited the sophisticated intermediary defense by not presenting it to the jury. Although the record clearly showed Johns-Manville was aware of the risks of asbestos in general, no evidence established it knew about extreme risks posed by the crocidolite asbestos supplied by defendant. Moreover, the record was devoid of evidence that defendant actually and reasonably relied on Johns-Manville to warn end users like plaintiff about the dangers of asbestos. (May 23, 2016.)

CALIFORNIA COURTS OF APPEAL
Arbitration
Baxter v. Bock (2016) _ Cal.App.4th _ , 2016 WL 2995535: The Court of Appeal affirmed the trial court’s order confirming an arbitration award in a fee dispute case, but vacated and remanded the portion of the order awarding attorney fees to defendants for the confirmation hearing. The arbitrator in this case was not required to make a disclosure regarding his consulting practice, and plaintiff failed to prove his claim that the arbitrator was biased against attorneys. The Court of Appeal, however, found no reasonable basis for the difference in compensation assigned by the trial court to defendants’ two attorneys who had similar experience and qualifications. The Court of Appeal vacated that portion of the attorney fee order and remanded for the trial court either to assign the two attorneys the same rate of compensation or to articulate a reasonable basis for any difference. (C.A. 1st, filed May 18, 2016, published May 24, 2016.)
Rice v. Downs (2016) _ Cal.App.4th _ , 2016 WL 3085995: The Court of Appeal reversed the trial court’s order compelling arbitration of tort claims by plaintiff against defendant, his former attorney. While the parties consented to jurisdiction in state and federal courts sitting in California for “any action on a claim arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement,” they agreed to arbitrate only “any controversy between the parties arising out of this Agreement.” Viewing these adjacent provisions together, the Court of Appeal ruled that the parties intended to arbitrate only a limited range of claims, i.e., those arising out of the agreement, while litigating a much broader range of claims, i.e., any claim arising out of, under, or in connection with the agreement or transactions contemplated by the agreement. The Court of Appeal reversed the judgment confirming the arbitration award with respect to the claims of legal malpractice, breach of fiduciary duty, and rescission. (C.A. 2nd, June 1, 2016.)

Civil Procedure (Anti-SLAPP, Costs, Joinder, Statue of Limitations)
Aghaji v. Bank of America, N.A. (2016) _ Cal.App.4th _ , 2016 WL 3085551: The Court of Appeal affirmed the trial court’s order sustaining demurrers, without leave to amend, to the omnibus third amended complaint. 222 plaintiffs filed 22 related mass actions against various financial institutions and mortgage loan servicers. Plaintiffs are homeowners from all over the country. Each mass action involves numerous plaintiffs whose loans originated with and/or were serviced by a single defendant or related affiliates. The defendants in the lead case were Bank of America, N.A. and several of its subsidiaries or divisions and affiliates or agents. Plaintiffs challenged only the trial court’s denial of their request for leave to amend their unfair business practices cause of action to add factual allegations to support an entirely different theory than was suggested in the complaint. Plaintiffs failed to show that their proposed additional facts were sufficient to state an unfair competition law claim. Moreover, even if their proposed additional facts were sufficient, plaintiffs clearly demonstrated that the claim could not be prosecuted as a mass action because the 222 plaintiffs’ claims do not arise out of the same transaction or occurrence as required by Code of Civil Procedure section 378. (C.A. 2nd, May 31, 2016.)
Charton v. Harkey (2016) _ Cal.App.4th _ , 2016 WL 2994747: The Court of Appeal affirmed the trial court’s finding that one defendant was entitled to costs, but reversed its decision to reduce that defendant’s cost award by 75% because she was one of several jointly-defended parties. The Court of Appeal concluded that, when the Legislature revised Code of Civil Procedure section 1032 in 1986, it intended to eliminate the unity of interest exception as a basis for denying a prevailing party the right to recover costs. Under section 1033.5, when less than all of a group of jointly represented parties prevail, the trial court must apportion the costs among the jointly represented parties based on the reason for incurring each cost and whether the cost was reasonably necessary to the conduct of the litigation on behalf of the prevailing parties. The court may not make an across-the-board reduction based on the number of jointly represented parties because doing so fails to consider the reason for incurring the costs and whether they were reasonably necessary for the prevailing party. (C.A.4th, May 24, 2016.)
Doe v. Roman Catholic Archbishop of Los Angeles (2016) _ Cal. App.4th _ , 2016 WL 3034674: The Court of Appeal affirmed the trial court’s order sustaining a demurrer, but remanded the case to give plaintiffs the opportunity to amend the complaint. The trial court properly found that plaintiffs’ claims for childhood sexual abuse by a priest had expired before their lawsuit was filed, the claims were not tolled under Insurance Code section 11583 by gifts the priest gave to plaintiffs, and the claims were not revived by legislative changes made over the years to the statute of limitations. Because the complaint alleged when the payments by the priest started but was silent as to when they stopped, the Court of Appeal remanded to allow plaintiffs an opportunity to amend the complaint to allege tolling under section 11583. (C.A. 2nd, May 26, 2016.)
Rand Resources, LLC v. City of Carson (2016) _ Cal.App.4th _ , 2016 WL 3085525: The Court of Appeal reversed the trial court’s order granting an anti-SLAPP motion to strike. Plaintiff, formerly the defendant’s exclusive agent sued for breach of, and interference with, the agency contract and related causes of action. The Court of Appeal concluded that the trial court erred because defendants’ actions did not arise from an act in furtherance of their right of free speech or to petition for redress of grievances and were not in connection with an issue of public interest, and therefore fell outside the scope of the anti-SLAPP statute. (C.A. 2nd, May 31, 2016.)

Employment
Seibert v. City of San Jose (2016) _ Cal.App.4th _ , 2016 WL 3085205: The Court of Appeal reversed the trial court’s order granting a writ of administrative mandamus to set aside a decision by the Civil Service Commission of the City of San Jose (Commission) denying plaintiff’s appeal from a decision by the San Jose Fire Department (Department) to terminate his employment as a firefighter and paramedic. The Court of Appeal ruled that (1) the Commission was not deprived of jurisdiction by the belated filing of the notice of discipline on which the challenged dismissal was based; (2) the trial court properly concluded that the e-mail exchange as alleged in one charge, which made no reference to the recipient’s age (16 years old), could not be found to violate any applicable rule or policy; (3) the court permissibly found, on conflicting evidence, that plaintiff lacked actual or constructive knowledge of the recipient’s age; (4) the court erred by refusing to consider the contents of interview transcripts which constituted the chief evidence of misconduct toward a female coworker; and (5) the court should have directed that any further administrative proceedings be heard and determined by an administrative law judge. (C.A. 6th, May 31, 2016.)

Torts (Assumption of Risk, Molestation)
Bertsch v. Mammoth Community Water District (2016) _ Cal. App.4th: The Court of Appeal affirmed the trial court’s summary judgment for defendant in a wrongful death action. Decedent tragically lost his life while skateboarding with his brother in the resort town of Mammoth Lakes. The two were traveling downhill at a “pretty fast” speed, without helmets, when the front wheels of decedent’s skateboard hit a small gap between the paved road and a cement collar surrounding a manhole cover, stopping the wheels and ejecting him from the board. The impact of decedent’s skull with the pavement resulted in a traumatic brain injury and ultimately death. The trial court properly granted summary judgment based on the doctrine of primary assumption of risk. (C.A. 3rd, June 1, 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 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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