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McIntyre’s Civil Alert

CALIFORNIA COURTS OF APPEAL

Appeal
Hjelm v. Prometheus (2016) _ Cal.App.4th _ , 2016 WL 5815768: The Court of Appeal affirmed a jury verdict awarding plaintiffs economic damages of $11,652 and noneconomic damages of $60,000, and an attorney fee award of $326,475.00, in an action by tenants for damages caused by a bedbug infestation and a raw sewage problem in their apartment complex. The Court of Appeal concluded the appeal of the verdict was untimely, and the trial court properly awarded attorney fees under Civil Code section 1717. (C.A. 1st, filed September 9, 2016, published October 5, 2016.)

Attorney Fees
Wertheim LLC v. Omidvar (2016) _ Cal.App.4th _ , 2016 WL 5462093: The Court of Appeal affirmed the trial court’s order denying a motion to recoup attorney fees after a lender/ judgment debtor obtained a reversal of a judgment confirming a $672,122 arbitration award against the lender and the superior court released all deposited funds to the lender. The trial court properly denied the lender’s motion to recoup attorney fees. (C.A. 2nd, September 29, 2016.)

Civil Procedure
Moran v. Prime Healthcare (2016) _ Cal.App.4th _ , 2016 WL 5815785: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, to a third amended complaint alleging violations of the Unfair Competition Law (Business & Professions Code, section 17200), the Consumer Legal Remedies Act (Civil Code, section 1750 et seq.), and also seeking declaratory relief arising from variable pricing practices of a hospital emergency room charging a self-pay person substantially more for the same care than a person covered by either a government-sponsored program or private insurance. The Court of Appeal concluded that, while most of the claims asserted by plaintiff lacked merit, he sufficiently alleged facts supporting the three causes of action on the basis that the amount charged by defendants to self-pay patients was unconscionable. (C.A. 4th, filed September 14, 2016, published October 5, 2016.)

Class Actions
Nicodemus v. St. Francis (2016) _ Cal.App.4th _, 2016 WL 4800893: The Court of Appeal reversed the trial court’s order denying class certification in an action alleging that a medical provider charged more for medical records than the amounts specified in Evidence Code section 1158. The Court of Appeal concluded that the trial court erred in denying the motion for class certification. (C.A. 1st, filed September 9, 2016, published October 6, 2016.)

Contracts
LSREF2 Clover Property 4 v. Festival Retail Fund 1 (2016) _ Cal.App.4th _ , 2016 WL 5765423: The Court of Appeal reversed the trial court’s order, following a bench trial, finding that a guarantee was not enforceable under a sham guaranty defense. The Court of Appeal ruled that, because defendant structured the transaction and decided that a separate affiliate entity would take out the loan and take title to the property, the trial court erred in applying a sham guaranty defense and entering judgment for defendant. (C.A. 2nd, October 4, 2016.)

Damages (Future Loss of Earning Capacity)
Licudine v. Cedars-Sinai Med. Center (2016) _ Cal.App.4th _ , 2016 WL 5462099: : The Court of Appeal affirmed the trial court’s order granting a new trial on damages rather than entering a judgment notwithstanding the verdict for the defendants. Plaintiff suffered injury during a gallbladder surgery that will have lifelong repercussions. She sued for malpractice and sought damages for the resulting diminution in her earning capacity. The jury awarded plaintiff $730,00 for loss of earning capacity. Before such damages may be awarded, a jury must (1) find the injury that the plaintiff sustained will result in a loss of earning capacity, and (2) assign a value to that loss by comparing what the plaintiff could have earned without the injury to what she can still earn with the injury. (See Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153 (Fein); Storrs v. Los Angeles Traction Co. (1901) 134 Cal. 91, 93 (Storrs).) No case has yet articulated how certain future loss of earning capacity must be. The Court of Appeal ruled that the jury must fix a plaintiff’s future earning capacity based on what it is “reasonably probable” she could have earned. Because the plaintiff in this case did not adduce any evidence to establish that it was “reasonably probable” she could have obtained employment as an attorney or any evidence on the earnings of lawyers, the trial court did not abuse its discretion in determining that the jury’s $730,000 award for lost earning capacity was not supported by substantial evidence. (C.A. 2nd, September 29, 2016.)

Medical Malpractice
Markow v. Rosner (2016) _ Cal.App.4th _ , 2016 WL 5765470: The Court of Appeal affirmed a judgment against defendant physician Rosner for $5.2 million (after reducing the noneconomic damages to $250,000 per Civil Code section 3333.2) in an action for medical malpractice arising from pain management treatment that rendered plaintiff Michael Markow quadriplegic. The Court of Appeal reversed the portion of the judgment finding defendant Cedars-Sinai Medical Center (Cedars) was 40% at fault on the basis that defendant Rosner was the ostensible agent of Cedars. The trial court erred in not granting a motion for judgment notwithstanding the verdict on this issue because, in Conditions of Admissions forms that plaintiff signed on 25 separate occasions, Cedars unambiguously informed plaintiff that all doctors furnishing services to patients were independent contractors. (C.A. 2nd, October 4, 2016.)

Real Property
Kalnel Gardens v. City of L.A. (2016) _ Cal.App.4th _ , 2016 WL 5462098: The Court of Appeal affirmed in part, and denied in part, the trial court’s decision denying a writ petition seeking to overturn respondent’s decision to halt a previously approved 15- unit housing project in Venice. The Court of Appeal dismissed the appeal in part as to the developer’s cause of action based on the Housing Accountability Act because the developer did not seek appellate review by way of a writ petition as required by that statute. The Court of Appeal affirmed as to the remaining causes of action because there was substantial evidence that the proposed project violated the visual and scenic elements requirement of the California Coastal Act, and because the Coastal Act takes precedence over statutes awarding density and height increase bonuses for proposed residential developments that include affordable housing units. (C.A. 2nd, September 29, 2016.)
LSREF2 Clover Property 4 v. Festival Retail Fund 1 (2016) _ Cal.App.4th _ , 2016 WL 5765423: See summary above under Contracts.

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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