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McIntyre’s Civil Alert. Organized Succinct Summaries.

CALIFORNIA COURTS OF APPEAL

Appeals
Chango Coffee, Inc. v. Applied Underwriters, Inc. (2017) _ Cal. App.5th _, 2017 WL 2302170: The Court of Appeal dismissed defendant’s purported appeal from the trial court’s order denying its renewed petition to compel arbitration under Code of Civil Procedure section 1008(b) because an order denying a renewed motion or application under section 1008(b) is not appealable. (C.A. 2nd, May 26, 2017.)

Arbitration
Heimlich v. Shivji (2017) _ Cal.App.5th _, 2017 WL 2351269: The Court of Appeal reversed the trial court’s order confirming an arbitration award but denying defendant’s request for Code of Civil Procedure section 998 costs. The trial court had determined that defendant had failed to make a timely section 998 claim to the arbitrator, but the Court of Appeal disagreed. It held that defendant was not required to present his section 998 cost request to the arbitrator during the arbitration hearing because an offer which is not accepted “cannot be given in evidence upon the trial or arbitration.” (Section 998(b)(2).) In the request to confirm the arbitration award, defendant established that the arbitrator had refused to hear any evidence of plaintiff’s rejection of defendant’s section 998 offer. The Court of Appeal concluded that defendant had timely presented his 998 claim to the arbitrator, the arbitrator should have reached the merits of that claim, and the arbitrator’s refusal to hear evidence of the 998 offer warranted partially vacating the arbitration award. (C.A. 6th, May 31, 2017.)

Attorney Fees
Kinney v. Clark (2017) _ Cal.App.5th _, 2017 WL 2131382: The Court of Appeal dismissed an appeal of a post judgment award for attorney fees on the basis that it was frivolous. Plaintiff had been contesting attorney fees since 2008, and had been declared a vexatious litigant by the Los Angeles Superior Court, the Second District Court of Appeal, and the United States District Court for the Central District of California. The Court of Appeal imposed an expanded prefiling order, under Code of Civil Procedure section 391.7, requiring plaintiff to obtain leave of the presiding judge before filing new litigation (including any appeal or writ) against defendant or her attorney in a court of this state, even when he is represented by counsel. (C.A. 2nd, May 17, 2017.)

Settlements
Krechuniak v. Noorzoy (2017) _ Cal.App.5th _, 2017 WL 1967796: The Court of Appeal affirmed the trial court’s order entering a stipulated judgement for $850,000 pursuant to a memorandum of settlement. The settlement called for payments totaling $600,000, and included a stipulated judgment for $850,000 in the event of a breach. In his appeal, defendant contended that the stipulated judgment amount included a liquidated damages penalty of $250,000 that was unenforceable under Civil Code section 1671, but he did not make this argument in the trial court. The Court of Appeal ruled that defendant had forfeited his contention. The determination of whether a contract provision is an illegal penalty or an enforceable liquidated damage clause is a question to be determined by the trial court and, on review, appellate deference to the trial court’s factual findings is required unless the facts are undisputed and susceptible of only one reasonable conclusion. (C.A. 6th, May 12, 2017.)

Class Actions
Bartoni v. American Medical Response West (2017) _ Cal.App.5th _, 2017 WL 1476182: In a wage and hour class action case, that also alleged violations under the Private Attorneys General Act of 2004 (PAGA), plaintiffs appealed the trial court’s denial of the motion for class certification. The Court of Appeal denied defendant’s motion to dismiss the appeal because the PAGA claims remained and it deemed plaintiffs’ appeal to be a petition for writ of mandate. The Court of Appeal concluded the trial court’s denial of class certification rested in part on an incorrect legal assumption about the nature of rest periods and therefore granted the writ and ordered the trial court to vacate the portion of its order denying class certification for claims regarding the failure to provide off-duty rest periods. (C.A. 1st, filed April 25, 2017, published May 24, 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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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 monty.mcintyre@gmail.com.

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