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California Case Summaries ADR™. Organized Succinct ADR Summaries by Monty A. McIntyre, Esq.

CALIFORNIA SUPREME COURT
Arbitration
McGill v. Citibank (2017) _ Cal.5th _, 2017 WL 1279700: In a class action alleging claims under the Consumers Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.), the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.), the false advertising law and the Insurance Code arising from a credit card agreement, the California Supreme Court reversed the Court of Appeal ruling ordering the trial court to order all of plaintiff’s claims to arbitration. The California Supreme Court ruled that a provision in a predispute arbitration agreement that waived the right to seek the statutory remedy of injunctive relief under the CLRA, UCL and the false advertising law was contrary to California public policy and thus was unenforceable under California law. The Supreme Court further held that the Federal Arbitration Act did not preempt this rule of California law or require enforcement of the waiver provision. The Court of Appeal’s judgment was reversed and the matter was remanded for further proceedings consistent with the opinion. (April 6, 2017.)

Attorney Fees
DisputeSuite.com v. ScoreInc.com (2017) _ Cal.5th _, 2017 WL 1279701: The California Supreme Court affirmed the trial court's finding that defendants were not prevailing parties for purposes of an attorney fee award under Civil Code section 1717, even though they successfully obtained a dismissal from a California court on the ground that the agreement at issue contained a forum selection clause specifying the courts of another jurisdiction. The Supreme Court ruled that, under the circumstances of the case, where action had already been refiled in the chosen jurisdiction and the parties’ substantive disputes remained unresolved, the trial court reasonably concluded that neither party had yet achieved its litigation objectives to an extent warranting an award of fees. (April 6, 2017.)

Consumer Protection
McGill v. Citibank (2017) _ Cal.5th _, 2017 WL 1279700: See summary above under Arbitration.

CALIFORNIA COURTS OF APPEAL
Civil Code (Indemnity)
Oltmans Construction v. Bayside Interiors
(2017) _ Cal.App.5th _, 2017 WL 1179391: The Court of Appeal reversed the trial court’s summary judgment for a subcontractor regarding a contractor’s claim for indemnity, but dismissed the appeal because the parties had settled the case. The subcontractor agreed to indemnify a general contractor for injury claims arising out of the scope of the subcontractor’s work “except to the extent the claims arise out of, pertain to, or relate to the active negligence or willful misconduct” of the general contractor. The trial court erred in finding that this provision, and California Civil Code section 2782.05, precluded the general contractor from recovering any indemnity if its active negligence contributed to the injury. The Court of Appeal ruled that the written agreement and section 2782.05 instead limited the recoverable indemnity to the portion of liability attributable to the negligence of others. (C.A. 1st, March 30, 2017.)

Civil Procedure (Bonds on Appeal)
Quiles v. Parent (2017) _ Cal.App.5th _, 2017 WL 1130936: The Court of Appeal granted a writ of supersedeas staying the enforcement of the costs portion of a judgment pending appeal where no bond had been filed for the appeal. Plaintiff obtained a jury verdict awarding her $383,500 in damages for wrongful termination. The trial court conditionally granted a motion for new trial, which plaintiff accepted, reducing the judgment to $208,500. The trial court later awarded plaintiff attorney fees of $689,310.04 and costs of $50,591.69. Defendant then paid the total damages and interest owing, leaving only the attorney fees and costs unpaid. Defendant appealed the fees and costs without filing a bond, and plaintiff sought to execute because no bond had been filed by defendant. The trial court denied defendant’s motion to stay execution. The Court of Appeal ruled the costs and attorney fees were awarded as costs under Code of Civil Procedure section 1021 et seq., and therefore no undertaking was required to stay execution of the judgment pending the appeal. (Code of Civil Procedure section 917.1(d).) (C.A. 4th, March 27, 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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