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

CALIFORNIA SUPREME COURT
Employment
Dynamex Operations West, Inc. v. Superior Court (2018) _ Cal. 5th _ , 2018 WL 1999120: The California Supreme Court affirmed the Court of Appeal decision denying a writ petition challenging the decision of the trial court's order certifying a class action by delivery drivers alleging wage and hour and other Labor code violations. The California Supreme Court ruled that the "suffer or permit to work" definition of "employ" contained in a wage order may be relied upon in evaluating whether a worker is an employee or an independent contractor for determining the obligations imposed by the wage order. The wage orders suffer or permit to work definition must be interpreted broadly to treat as "employees" and provide protection to all workers who would ordinarily be viewed as working in the hiring business, but it should not include the type of individual workers, like independent plumbers or electricians, who have traditionally been viewed as genuine independent contractors who are working only in their own independent business. The "ABC" test should be used to determine if a worker is an independent contractor. A worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. (April 30, 2018.)

CALIFORNIA COURTS OF APPEAL
Accountants
Lederer v. Schneider (2018) _ Cal.App.5th _, 2018 WL 1870153: The Court of Appeal reversed the trial court's order granting summary judgment on the basis that the action was barred by the two-year statute of limitations for accounting malpractice in Code of Civil Procedure section 339(1). Plaintiff Joyce Lederer (Lederer) hired defendants to manage her finances and directed them to purchase insurance for family members including uninsured/underinsured auto coverage of $5 million. Defendants only purchased $1.5 million of such coverage. Lederer's son Jonathan (also a plaintiff in the action) was seriously injured in a motorcycle accident in February 2010. Plaintiffs learned in 2010 that their uninsured/underinsured coverage was only $1.5 million. In January 2012 Jonathan settled with the other driver for her $15,000 policy limits. In June 2012 Jonathan received the underinsured limit of $1.5 million. Plaintiffs filed their lawsuit in March 2013. The Court of Appeal ruled that the action was timely because Jonathan did not suffer actual damages as a result of the negligence of defendants until he received the payment of the underinsured policy limits in June 2012. (C.A. 2nd, April 19, 2018.)

Arbitration
Baker Marquart LLP v. Kantor (2018) _ Cal.App.5th _ , 2018 WL 1940490: The Court of Appeal reversed the trial court's order denying a petition to vacate an arbitration award regarding attorney fees. Petitioner represented respondent in a contingency matter. After the matter concluded, respondent demanded fee arbitration. Before the arbitration, respondent submitted an ex parte "confidential arbitration brief" that was not served on petitioner. The confidential brief raised and argued additional claims not presented in the arbitration demand. A majority of the arbitration panel ruled in respondent's favor and awarded him a refund of a portion of the fees he had paid to petitioner, relying on claims respondent raised in the confidential brief. Because petitioner had no true opportunity to respond to the new claims raised in the confidential brief, the arbitration award was vacated because it was procured by "undue means" in violation of Code of Civil Procedure, section 1286.2. (C.A. 2nd, April 25, 2018.)
Weiler v. Marcus & Millichap Real Estate Investment Services (2018) _ Cal.App.5th _ , 2018 WL 2011048: The Court of Appeal reversed the trial court's order granting summary judgment to defendants in a declaratory relief action by plaintiff seeking an order from the superior court that defendants must either (1) pay plaintiff's share of the costs in the previously ordered arbitration, or (2) waive their contractual right to arbitrate the underlying claims and allow them to be tried in the superior court. The Court of Appeal reversed the trial court because, under Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, there were triable issues of material fact regarding plaintiff's ability to pay her agreed share of the anticipated costs to complete the arbitration. (C.A. 4th, April 30, 2018.)

Attorney Fees
La Mirada Ave. etc. v. City of Los Angeles (2018) _ Cal.App.5th _ , 2018 WL 2057465: The Court of Appeal affirmed the trial court's order awarding petitioner La Mirada Avenue Neighborhood Association of Hollywood attorney fees of $793,817.50 and petitioner Citizens Coalition Los Angeles attorney fees of $180,320. The trial court properly awarded attorney fees under Code of Civil Procedure, section 1021.5 because petitioners had prevailed at trial and obtained a judgment that a construction project violated the zoning laws in existence at the time. Real party in interest Target Corporation later successfully changed the zoning laws, and legal challenges to the project under the revised zoning laws were not yet concluded. The attorney fee awards were proper because petitioners had obtained a final judgment in their favor on the merits under the law in existence at the time and what remained to be finally adjudicated is the validity of the project under the law as subsequently amended. (C.A. 2nd, May 3, 2018.)

Civil Procedure
Hedwall v. PCMV, LLC (2018) _ Cal.App.5th _ , 2018 WL 1870543: The Court of Appeal affirmed the trial court's cancellation of a second amended cross-complaint filed without court authorization before a demurrer to the first amended cross-complaint was heard, its order sustaining the demurrer to the first amended cross-complaint without leave to amend, and a later order granting a motion for judgment on the pleadings on the one remaining cause of action in the first amended cross-complaint. The Court of Appeal ruled that under Code of Civil Procedure section 472 the right to amend the complaint is limited to the complaint originally filed. The trial court properly denied leave to amend the first amended cross-complaint. (C.A. 2nd, April 19, 2018.)

Employment
Hernandez v. Rancho Santiago Community College District (2018) _ Cal.App.5th _ , 2018 WL 2057468: The Court of Appeal affirmed the judgment for plaintiff in the sum of $723,746, following a bench trial. Plaintiff, who was a probationary employee for one year, was terminated while she was on disability leave because her performance had not been reviewed. She sued under the California Fair Employment and Housing Act (FEHA; Government Code, section 12940(m),(n)) contending that defendant failed to make reasonable accommodation for her medical condition and failed to engage in an interactive process. The trial court properly ruled that defendant could have accommodated plaintiff by extending her probationary period, by deducting the four months she was on disability leave from her probationary period, or by adding the time away from work to the probationary period. (C.A. 4th, May 3, 2018.)

Torts
Day v. Lupo Vine Street (2018) _ Cal.App.5th _ , 2018 WL 1736790: The Court of Appeal affirmed the trial court's summary judgment for defendant landlord in a wrongful death action arising from the death of a customer who suffered a heart attack at a boxing health club. The club did not have an automated external defibrillator (AED) on the premises as required by Health and Safety Code section 104113. The Court of Appeal ruled that a commercial landlord who leases space to an operator of a health studio does not owe a duty under either the statute or the common law to acquire and maintain an AED at the space or ensure that the health club tenant does so. (C.A. 2nd, April 11, 2018.)
Novak v. Continental Tire North America (2018) _ Cal.App.5th _ , 2018 WL 1764173: The Court of Appeal affirmed the trial court's order granting defendants' motion for summary judgment in a wrongful death action. Plaintiff brought a wrongful death action against a tire manufacturer defendant and an auto mechanic defendant (collectively defendants). Plaintiff alleged defendants failed to warn decedent about the dangers of rubber degradation in old tires, which led to a tire blowout in 2005 that injured decedent, plaintiff's father. Plaintiff alleged that those injuries impaired decedent's mobility, necessitated his use of a motorized scooter with limited maneuverability, and led to his death in 2011 after his scooter was struck by a vehicle in a crosswalk. The trial court properly found the evidence was insufficient to establish a causal link between defendants' conduct alleged to have caused one traffic accident and decedent's death years later following a separate traffic accident. (C.A. 1st, filed March 20, 2018, published April 12, 2018.)

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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