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McIntyre’s Civil Alert

Organized Succinct Summaries by Monty A. McIntyre, Esq.


Real Property
Horiike v. Coldwell Banker (2016) _ Cal.App.4th _, 2016 WL 6833005: The California Supreme Court affirmed the Court of Appeal’s decision that reversed the jury’s verdict for defendant at trial. An associate licensee owed to the buyer a duty under Civil Code section 2079.13(b) to learn and disclose all information materially affecting the value or desirability of the property, including the discrepancy between the square footage of the residence‘s living area as advertised and as reflected in publicly recorded documents. (November 21, 2016.)

Kesner v, Superior Court (2016) _ Cal.App.4th _, 2016 WL 7010174: The California Supreme Court consolidated two cases that addressed the issue of whether employers or landowners owe a duty of care to prevent secondary exposure to asbestos. The Court reversed the judgment in Haver v. BNSF Railway Company and vacated the judgment in Kesner v. Superior Court and remanded both actions for further proceedings. The duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers. Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission. This duty also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability. This duty extends only to members of a worker’s household. (December 1, 2016.)


Condon v. Daland Nissan (2016) _ Cal.App.4th _, 2016 WL 6553961: The Court of Appeal reversed the trial court’s order confirming an arbitration award of $180,175.34 for plaintiff and denying defendants’ motion to compel a new arbitration before a three-arbitrator panel as authorized by the arbitration agreement when the award against a party exceeded $100,000. The lack of “appellate rules” was no impediment to ADR Services, Inc. (ADR) providing a new arbitration. Defendants did not insist on a new arbitral forum and indicated they would be happy to have the new arbitration with ADR. Plaintiff’s motion to confirm the award should have been denied, and defendants’ request for an order requiring a new arbitration should have been granted, specifying arbitration before ADR. (C.A. 1st, filed November 4, 2016, published November 30, 2016.)

Foxen v. Carpenter (2016) _ Cal.App.4th _, 2016 WL 7017964: The Court of Appeal affirmed the trial court’s order sustaining a demurrer on the basis of the statute of limitations in an action where plaintiff alleged numerous alleged wrongful acts by her attorneys who had represented her in a personal injury action. Most of the causes of action were barred by the one year statute of limitation in Code of Civil Procedure section 340.6. The causes of action for fraud and conversion were barred by the three year statute of limitations in Code of Civil Procedure section 338(c) because the complaint was filed more than three years after plaintiff first discovered the alleged wrongdoing. (C.A. 2nd, filed November 3, 2016, published December 1, 2016.)

Civil Code
McNair v. City and County of San Francisco (2016) _ Cal.App.4th _, 2016 WL 6879277: The Court of Appeal affirmed the trial court’s summary judgment on an intentional infliction of emotional distress cause of action and its nonsuit on a breach of contract action in a case arising out of a letter written by a doctor to the Department of Motor Vehicles disclosing her patient’s confidential medical history and health conditions that resulted in his commercial driver’s license being temporarily revoked and the loss of his job as a bus driver. Both of plaintiff’s claims were barred by the litigation privilege in Civil Code section 47(b). (C.A. 1st, November 22, 2016.)

Civil Procedure (Anti-SLAPP, CCP 473)
Gee v. Greyhound Lines (2016) _ Cal.App.4th _, 2016 WL 6835513: The Court of Appeal affirmed the trial court’s order granting a motion to set aside a dismissal under Code of Civil Procedure section 473(b). Section 473(b) can provide relief when an action is dismissed due to plaintiff’s counsel’s mistake or inexcusable neglect related to the failure to pay change of venue fees. Because this was plaintiff’s initial application for relief under section 473(b) and not a request to reconsider a denial of relief under that section, there was no requirement that she file a motion for reconsideration under Code of Civil Procedure section 1008. The Court of Appeal found there was sufficient evidence to justify the relief granted. (C.A. 3rd, November 21, 2016.)

Class Actions
Driscoll v. Granite Rock (2016) _ Cal.App.4th _, 2016 WL 6994923: The Court of Appeal affirmed the trial court’s judgment for defendant, following a bench trial, in a class action alleging primarily that defendant failed to provide off-duty meal periods and/or failed to pay plaintiffs one additional hour of pay for dutyfree meal periods. Defendant affirmatively notified its employees that they were entitled to a 30-minute off-duty meal period free from its control through its policies, postings and communications. Defendant did nothing to interfere with drivers’ ability to take an off-duty meal period. Drivers did not take off-duty meal periods because they did not want them. There was substantial evidence presented at trial to support the trial court’s finding that defendant provided its concrete mixer drivers with an off-duty meal period as required by law. (C.A. 6th, November 30, 2016.)

Goles v. Sawhney (2016) _ Cal.App.4th _, 2016 WL 6875926: The Court of Appeal reversed the trial court’s order, under Corporations Code section 2000(c), specifying $139,666.67 as the buyout value of plaintiff’s 36.7% minority shareholder interest in Katana Software, Inc. After the three appraisers could not agree on a value and submitted three different valuations, the trial court erred in “confirming” the reports “in their entirety” and averaging the numbers in its valuation order. This is not allowed by section 2000. In addition, in valuing the interest the three appraisals improperly failed to consider the breach of fiduciary duty claim alleging “looting” of the corporation, and improperly discounted the minority interest for lack of control in violation of Corporations Code section 2000. (C.A. 2nd, November 22, 2016.)

Doe v. Regents of the University of California (2016) _ Cal.App.4th _, 2016 WL 6879293: The Court of Appeal reversed the trial court’s judgment requiring defendant to set aside its findings and suspension sanctions issued against a male UCSD student after he was found to have violated the Student Conduct Code as a result of a sexual encounter with a female student. The Court of Appeal found that substantial evidence supported defendant’s decision and findings, the process was fair, and the sanctions were not an abuse of discretion. (C.A. 4th, November 22, 2016.)

Eblovi v. Blair (2016) _ Cal.App.4th _, 2016 WL 7011551: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to compel the city clerk to strike both the “Primary Argument Against Measure F” and the “Rebuttal to Argument in Favor of Measure F” because they were not filed by the city council. Petitioner argued that, under Elections Code section 9282(a), only the city council could file an opposition statement against the measure. The trial court correctly ruled that the law in this area should be interpreted liberally, not restrictively, because it deals with constitutionally protected freedom of speech and the right to a fair election. (C.A. 1st, December 1, 2016.)

LAOSD Absestos Cases (2016) _ Cal.App.4th _, 2016 WL 6875924: In a case alleging damages from asbestos exposure, the Court of Appeal affirmed the jury verdict for defendant. The jury found that defendant‘s conduct exposed plaintiff to asbestos, but that defendant was not negligent. The trial court did not err by (1) excluding two exhibits containing Southern California Gas Company specifications for contractors, (2) allowing the president of defendant to use a contract from a later time period to refresh his recollection about the content of earlier contracts, and (3) giving the jury two instructions: one about employer duties, and another stating that defendant was required to adhere to a “professional” standard of care. (C.A. 2nd, November 22, 2016.)

City of Palo Alto v. Public Employment Relations Board (2016) _ Cal. App.4th _, 2016 WL 6902091: The Court of Appeal granted a writ of extraordinary relief under Government Code section 3509.5. The Court of Appeal affirmed the Public Employment Relations Board’s (PERB) conclusion that the International Association of Firefighters, Local 1319, AFL-CIO had sufficiently requested to meet and consult with the City of Palo Alto (City) regarding the vote of its City Council to place on the ballot a measure to repeal a City charter provision requiring that impasses in negotiations regarding wages, hours, and other terms and conditions of employment for the City’s police and firefighters be submitted to binding interest arbitration. The Court of Appeal also held that the constitutional issues raised by the City were meritless. However, the Court of Appeal ruled that the PERB’s order directing the City Council to rescind its resolution violated the doctrine of separation of powers by ordering a legislative body to take legislative action. The PERB’s decision was annulled and remanded back to the PERB with directions to strike that remedy. (C.A. 6th, November 23, 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 StoriesPractice Management

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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