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California Case Summaries Civil™ Organized Succinct Summaries of New Civil Cases



T.H. v. Novartis Pharmaceuticals Corporation (2017) _ Cal.5th _, 2017 WL 6521684: The California Supreme Court affirmed the Court of Appeal's ruling directing the trial court to sustain a demurrer but grant leave to amend in a case where plaintiff alleged that defendant manufacturer failed to properly warn about known or reasonably knowable adverse effects arising from the use of its drug. Because the same warning label must appear on a brand-name drug as well as a generic bioequivalent, a brand-name drug manufacturer owes a duty of reasonable care in ensuring that the label includes appropriate warnings, regardless of whether the end user has been dispensed the brand-name drug or its generic bioequivalent. If the person exposed to the generic drug can reasonably allege that the brand-name drug manufacturer's failure to update its warning label foreseeably and proximately caused physical injury, then the brand-name manufacturer's liability for its own negligence does not automatically terminate merely because the brand-name manufacturer transferred its rights in the brand-name drug to a successor manufacturer. (December 21, 2017.)



Jensen v. U-Haul Co. of California (2017) _ Cal.App.5th _, 2017 WL 6276225: The Court of Appeal affirmed the trial court's order denying a motion to compel arbitration. Plaintiff's supervisor at work rented a truck from defendant and signed the contract that contained an arbitration clause. Plaintiff did not sign the arbitration agreement. The Court of Appeal was not persuaded by defendant's arguments that plaintiff should be bound to arbitrate the claim, even though he was not a signatory to the agreement, based upon theories of third-party beneficiary, agency, or estoppel. (C.A. 4th, December 11, 2017.)

Lawson v. ZB, N.A. (2017) _ Cal.App.5th _, 2017 WL 6540924: In consolidated proceedings, the Court of Appeal dismissed an appeal from an order granting a motion to compel arbitration because it was not appealable, but it granted a writ petition challenging the trial court's order. The trial court erred in bifurcating the underpaid wages portion of plaintiff's Private Attorneys General Act (PAGA, Labor Code, section 2698 et seq.) claim and ordering arbitration of that portion of the PAGA claim. (C.A. 4th, December 19. 2017.)

Attorney Fees

CA-Amer. Water Co. v. Marina Coast Water (2017) _ Cal.App.5th _, 2017 WL 6397685: The Court of Appeal affirmed the trial court’s order awarding attorney fees and costs to plaintiff and Monterey County Water Resources Agency after contracts between those parties and defendant were declared to be void. The Court of Appeal held that the trial court properly ruled that this case was an "action on a contract" for purposes of awarding attorney fees under Civil Code section 1717, and the fee award did not violate public policy. (C.A. 1st, December 15, 2017.)

Civil Procedure

Apple, Inc. v. Superior Court (2017) _ Cal.App.5th _, 2017 WL 6275830: The Court of Appeal granted a writ petition and directed the trial court to change its ruling overruling demurrers to the second amended complaint. In an issue of first impression, the Court of Appeal ruled that a plaintiff alleging derivative claims in an amended complaint following the grant of leave to amend must plead demand futility with respect to the board of directors in place as of the filing of the amended complaint, consistent with the rule enunciated by the Delaware Supreme Court in Braddock v. Zimmerman (2006) 906 A.2d 776. The trial court was directed to sustain the demurrer with leave to amend. (C.A. 6th, December 11, 2017.)

Boyd v. Freeman (2017) _ Cal.App.5th _, 2017 WL 6505856: The Court of Appeal reversed the trial court's order sustaining a demurrer, without leave to amend, in an action for wrongful foreclosure. The trial court erred in concluding that the doctrine of res judicata barred plaintiff's claims because of a judgment in favor of defendant and against plaintiff in a prior action. Because the prior judgment was based upon the statute of limitations, it was not on the merits and res judicata did not bar plaintiff's claims. (C.A. 2nd, December 20, 2017.)

Creed-21 v. City of Wildomar (2017) _ Cal.App.5th _, 2017 WL 6484032: The Court of Appeal affirmed the trial court's order dismissing a writ petition and complaint for declaratory and injunctive relief under the California Environmental Quality Act. The trial court properly imposed an issue sanction on standing pursuant to Code of Civil Procedure section 2023.0301, which terminated the action, for the misuse of the discovery process by petitioner by repeatedly failing to make available for a deposition a PMQ for petitioner. (C.A. 4th, filed November 28, 2017, published December 19, 2017.)

Optional Capital v. Akin Gump Strauss, Hauer & Feld LLP (2017) _ Cal.App.5th _, 2017 WL 5493915: The Court of Appeal affirmed the trial court's order granting anti-SLAPP motions to strike a complaint against lawyers arising from their representation of their client in litigation. It is well established that the protection of the anti-SLAPP statute extends to lawyers and law firms engaged in litigation-related activity. The gravamen of plaintiff's claims against defendants was based on protected activity, defendants' representation of their client in litigation. Plaintiffs could not demonstrate a probability of prevailing on its claims because they were barred by the litigation privilege in Civil Code section 47. (C.A. 2nd, filed November 16, 2017, published December 7, 2017.)

Rossetta v. CitiMortgage, Inc. (2017) _ Cal.App.5th _, 2017 WL 6422567: The Court of Appeal affirmed in part and reversed in part the trial court's order sustaining a demurrer, without leave to amend, to a complaint alleging several causes of action related to loan modification negotiations spanning more than two years. The trial court erred in sustaining the demurrer to the causes of action for negligence and violations of the Unfair Competition Law, it properly sustained the demurrer to the causes of action for intentional misrepresentation and promissory estoppel, but should have granted leave to amend to attempt to state a viable cause of action based on an alleged oral promise to provide plaintiff with a Trial Period Plan under the Home Affordable Mortgage Program, and the trial court properly sustained the demurrer to the causes of action for negligent misrepresentation, breach of contract, intentional infliction of emotional distress and conversion without leave to amend. (C.A. 3rd, December 18, 2017.)

SP Investment Fund I LLC v. Cattell (2017) _ Cal.App.5th _, 2017 WL 6523523: The Court of Appeal reversed the trial court's orders granting judgment on the pleadings and awarding attorney fees to defendant in an action for breach of contract and conversion arising from the sale of a limited partnership interest. The trial court erred in granting judgment on the pleadings because plaintiff's failure to obtain necessary approvals from other partners was not fatal to the breach of contract claim and, because the money at issue was a specific identifiable sum held for the benefit of another that allegedly had been misappropriated, a claim for conversion could be made. (C.A. 2nd, December 21, 2017.)


Duncan v. Wal-Mart Stores, Inc. (2017) _ Cal.App.5th _, 2017 WL 5425048: The Court of Appeal modified the trial court’s postjudgment order granting Hartford Accident & Indemnity Company (Hartford) a lien on plaintiff’s recovery against defendant. The trial court exceeded its authority by reducing the lien amount for lost wages because plaintiff did not seek those damages against defendant. Under Labor Code section 3856’s plain language and the case law applying, Hartford was entitled to a first lien on the judgment in the amount it paid plaintiff for worker’s compensation benefits. Plaintiff’s choice not to seek lost wages at trial did not diminish Hartford’s lien rights under the workers’ compensation statutory scheme. (C.A. 4th, filed November 14, 2017, published December 13, 2017.)

Kim v. Reins International California, Inc. (2017) _ Cal.App.5th _, 2017 WL 6629408: The Court of Appeal affirmed the trial court’s order granting summary judgment to defendant in a case where plaintiff sued alleging individual and class claims for wage and hour violations, and seeking civil penalties on behalf of the State of California and aggrieved employees under Labor Code section 2698 et seq., the Labor Code Private Attorneys General Act of 2004 (PAGA). Plaintiff’s individual claims were ordered to arbitration. While the arbitration was pending, plaintiff accepted an offer to settle his individual claims and dismiss those claims with prejudice. The trial court properly granted summary judgment because, after he settled and dismissed his individual claims against defendant with prejudice, plaintiff no longer had standing under the PAGA as an aggrieved employee. (C.A. 2nd, December 29, 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

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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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