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


Civil Procedure (Motion for New Trial)
Kabran v. Sharp Memorial Hospital (2017) _ Cal.5th _, 2017 WL 218033: The California Supreme Court affirmed the judgment of the Court of Appeal that upheld the trial court’s order granting a motion for new trial even though the plaintiff had failed to timely file the necessary filing fee for expert affidavits in support of the motion. Defendant did not object to the timeliness of the affidavits in the trial court. However, on appeal it argued for the first time that, under Erikson v. Weiner (1996) 48 Cal.App.4th 1663 (Erikson), because the affidavits were not timely filed, the trial court lacked jurisdiction to rely on them in hearing the new trial motion. The California Supreme Court ruled that the 30-day aggregate period for the submission of affidavits under Code of Civil Procedure section 659a is not jurisdictional, and disapproved Erikson to the extent it was inconsistent with the decision. Because defendant failed to assert the timeliness objection in the trial court, it could not raise this argument for the first time on appeal. The lack of timeliness did not deprive the trial court of jurisdiction to consider the affidavits. (January 19, 2017.)

Association of California Insurance Companies v. Jones (2017) _ Cal.5th _, 2017 WL 280822: The California Supreme Court reversed the decision of the Court of Appeal affirming the trial court’s order ruling that the California Insurance Commissioner had exceeded his authority in issuing a 2011 regulation covering replacement cost estimates for homeowners insurance (California Code of Regulations, title 10, section 2695.183). The California Supreme Court ruled that the statutory authority supported the Insurance Commissioner’s regulation. Because the regulation had been invalidated below solely under the Administrative Procedure Act and plaintiff’s remaining challenges to the regulation had not yet been considered, the matter was reversed and remanded for further proceedings consistent with the opinion. (January 23, 2017.)


Civil Code (Civil Code section 895)
Acqua Vista Homeowners Association v. MWI, Inc. (2017) _ Cal. App.5th _, 2016 WL 371379: The Court of Appeal reversed a judgment for plaintiff against defendant in the sum of $23,955,796.28 following a jury trial. Plaintiff alleged, and the jury agreed, that defective cast iron pipe manufactured in China was used throughout the building. The claim was brought under Civil Code section 895 et seq. (“the Act”). The Court of Appeal ruled that the Act requires homeowners suing a material supplier under the Act to prove that the material supplier caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract. The Court of Appeal held that the trial court had erred in denying defendant’s motions for directed verdict, and later motion for judgment notwithstanding the verdict, on the basis that plaintiff had failed to present any evidence that defendant had caused a violation of the Act’s standards as a result of defendant’s negligence or breach of contract. The matter was remanded to the trial court with directions to grant defendant’s motion for a directed verdict and to enter judgment in favor of defendant. (C.A. 4th, January 26, 2017.)

Civil Procedure
Chen v. L.A. Truck Centers (2017) _ Cal.App.5th _, 2016 WL 192724: The Court of Appeal reversed a jury verdict and judgment for defendant because the trial court had declined to reconsider its earlier choice of law ruling to apply Indiana law after the only Indiana defendant settled with plaintiffs. Chinese citizen plaintiffs sued a California tour bus distributor for strict products liability for injuries and deaths suffered in a bus rollover accident in Arizona. The trial court initially applied Indiana law because the tour bus had been manufactured in Indiana by an Indiana manufacturer. This ruling, like an in limine ruling, was subject to reconsideration at any time before the submission of the case. The trial court erred in failing to reconsider the choice of law question once the Indiana defendant settled. On the choice of law issue, the Court of Appeal held that California’s interest in imposing its rules of strict products liability in this case, in which a California dealership ordered an allegedly defective product, imported it into the state, and sold it to a California tour company for use on California roads, was strong. After the Indiana manufacturer defendant settled, Indiana’s interest in protecting its resident product manufacturers was no longer implicated by this case. (C.A. 2nd, January 18, 2017.)
Stueve v. Buchalter Nemer (2017) _ Cal.App.5th _, 2017 WL 192727: The Court of Appeal reversed the trail court’s order granting a motion to dismiss under Code of Civil Procedure section 583.310 et seq. for failure to bring the action to trial within five years of the filing of the complaint. “In an action tried to a jury, the action is brought to trial when the jury is impaneled and sworn.” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723.) Three days before the five-year statute expired, a panel of 75 potential jurors was assembled and sworn. Seven days later, while voir dire was still in progress, defendants moved to dismiss under the five-year dismissal statute, and the trial court granted the motion, finding that the jury had not yet been impaneled and sworn. The Court of Appeal reversed, ruling that the jury was “impaneled” when the panel of prospective jurors assembled in the courtroom for voir dire, and the panel was “sworn” when the prospective jurors took an oath to respond truthfully, so the action was timely brought to trial. (C.A. 4th, January 18, 2017.)

Civil Rights
Simmons v. Superior Court (2016) _ Cal.App.5th _, 2016 WL 7474536: The Court of Appeal granted a writ petition ordering the trial court to vacate the portion of its order granting summary judgment for defendant on the cause of action alleging damages under the Tom Bane Civil Rights Act (Bane Act; Civil Code, section 52.1). The trial court granted summary judgment on the basis that a Bane Act claim could not arise for acts following a lawful arrest. The Court of Appeal disagreed and ruled that a Bane Act claim may arise from excessive force or an unlawful search following a lawful arrest. (C.A. 4th, filed December 29, 2016, published January 25, 2017.)

San Jose Unified School District v. Santa Clara County Office of Education (2017) _ Cal.App.5th _, 2017 WL 345136: The Court of Appeal affirmed the trial court’s judgment granting a writ petition and issuing a peremptory writ of mandate directing the Santa Clara County Board of Education to rescind its resolution, approved under the alleged authority of Government Code section 53094, exempting from local zoning ordinances property to be used by Rocketship Education for a charter school. The Court of Appeal ruled that section 53094 does not authorize county boards of education to issue zoning exemptions for charter schools. (C.A. 6th, January 24, 2017.)

Central San Joaquin Water v. Stockton East Water District (2017) _ Cal.App.5th _, 2017 WL 7438688: The Court of Appeal affirmed the trial court’s judgment that defendant’s 2010 and 2011 wheeling rates (water transportation charges) could not be upheld under the Wheeling Statutes (Water Code, section 1810 et seq.). The trial court correctly ruled that the Wheeling Statutes must be read as a whole and the language read in light of the purposes and policies of the statutes to facilitate the voluntary exchange of water, noting that the Legislature could have provided for a pro rata cost allocation but chose to omit reference to any specific formula or methodology and instead set forth a number of factors that must be considered in setting a wheeling rate. In light of the statutory language, rates must be set on a case-by-case basis, and in this case, defendant failed to consider all of the appropriate factors, including incremental costs and the value of offsetting benefits from the wheeling. The rates set ran counter to an analysis of competitive pricing and violated the statutes’ directive that such rates be reasonable. (C.A. 3rd, filed December 27, 2016, published January 25, 2017.)

Pizarro v. Reynoso (2017) _ Cal.App.5th _, 2017 WL 192726: The Court of Appeal affirmed the trial court’s order denying petitions for relief under Probate Code 17200 following the sale of real property by the trustee of a trust, and also ordering petitioners to pay the trust’s attorney fees and costs. Petitioners forfeited their appellate argument by failing to present a focused, organized, and coherent argument for why the order should be reversed. The trial court properly awarded fees and costs, except to the extent that the trial court made petitioners personally liable for attorney fees and costs rather than liable solely from their shares of the trust assets. (C.A. 3rd, January 18, 2017.)

Leyva v. Crockett & Co. (2017) _ Cal.App.5th _, 2017 WL 192980: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant golf course owner/ operator under the trail immunity in Government Code section 831.4. Plaintiffs sued after a golf ball struck plaintiff Miguel Leyva in the eye while he and his wife walked along a public path adjacent to the Bonita Golf Club. The Court of Appeal ruled that trail immunity extends to a trail’s design and location. (C.A. 4th, filed January 18, 2017, published January 25, 2017.)

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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