ADVANCE TAPES CASE SUMMARIES



[After finding a case, search backwards to determine the ADVANCE TAPES issue in which the case was discussed]

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*(T/AT I,1 - 9/92)

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0001 Jury instructions that correctly defined design defect overcame any error resulting from use of special verdict form in which question asked was not completely consistent with correct definition.



NEAL v MONTGOMERY (Defective Verdict Form) 7 CA4 1194 [See: Greenman v Yuba Power Products 59 C2 57; Barker v Lull Engineering Co. 20 C3 413; Campbell v General Motors Corp. 32 C3 112; Bernal v Richard Wolf Medical Instruments Corp. 221 CA3 1326; BAJI (special verdict form) 16.11]



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0002 Discovery of trade secret requires showing that information is relevant and necessary.



BRIDGESTONE v SUPERIOR COURT (Tire Formula) 7 CA4 1384 [See: CivC 3426.1 (d); EvC 1060]



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0003 Physician does not have obligation to inform patient about procedure that physician reasonably does not recommend.



VANDI v PERMANENTE (Non-Recommended CT Scan) 7 CA4 1064 [See: Cobbs v Grant 8 C3 229; Truman v Thomas 27 C3 285; Scalere v Stenson 211 CA3 1446]



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0004 Contract to pay contingent fee to consultant is enforceable, but some or all of consultant's fee may be deducted from attorney's fee.



OJEDA v SHARP (Contingent Consultant) 8 CA4 1 [See: Cal Compendium on Prof. Responsibility pIIA-242; B&P 6146]



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0005 DEPUBLISHED Expert witness may be cross-examined on material not used in forming her/his opinion.



AMADOR v COUNTY (Unused Material) 7 CA4 1976 [See: EvC 721; People v Bell 49 C3 502]



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0006 Developers of condominium sued by condo association are not entitled to equitable indemnity from individual condo owners.



LAURIEDALE v SCOTT (Condo Indemnity) 7 CA4 1439 [See: City and County of SF v Ho Sing 51 C2 127; American Motorcycle Assn. v Superior Court 20 C3 578]



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0007 Insurance does not cover liability resulting from wrongful termination in violation of FEHA or NLRA.



B & E v STATE COMPENSATION (Termination Insurance) 8 CA4 78 [See: Tameny v Atlantic Richfield 27 C3 167; Foley v Interactive Data Corp. 47 C3 654; Gantt v Sentry Insurance 1 C4 1083; Shoemaker v Myers 52 C3 1 ("Shoemaker II"); Shoemaker v Myers 2 CA4 1407 ("Shoemaker III"); Rojo v Kliger 52 C3 65; Blom v N.G.K. Spark Plugs 3 CA4 382; Flait v North American Watch Corp. 3 CA4 467; Republic Indemnity Co. v Superior Court 224 CA3 492; J.C. Penney Casualty Ins. Co. v M.K. 52 C3 1009; Fire Ins. Exchange v Altieri 235 CA3 1352]



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0008 Insurance coverage for liability resulting from unfair competition applies only to common law unfair competition and not to liability resulting from violation of statutes.



BANK OF THE WEST v SUPERIOR COURT (Unfair Competition Insurance) 2 C4 1254.



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*(T/AT I,2 - 10/92)

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0009 Primary assumption of the risk is an absolute bar to recovery and occurs when a plaintiff participates in an activity in which participants do not owe each other a duty of reasonable care.



KNIGHT v JEWETT (A/R Touch Football) 3 C4 296 [See: Li v Yellow Cab 13 C3 804]



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0010 Primary assumption of the risk is an absolute bar to recovery and occurs when a plaintiff participates in an activity in which participants do not owe each other a duty of reasonable care.



FORD v GOUIN (A/R Barefoot Skier) 3 C4 339 [See: H&NC 658(d); EvC 669; Knight v Jewett 3 C4 296; Li v Yellow Cab 13 C3 804]



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0011 DEPUBLISHED Insufficiency in claim filed against municipality is waived by failure to serve notice of insufficiency; a condition of public property not dangerous in itself may be dangerous because of its proximity to conditions outside the property.



JOYCE v SIMI VALLEY UNIFIED (Open Gate) 8 CA4 1185 [See: GovC 835, 910, 910.8, 911]



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0012 Notice required for medical malpractice claim does not satisfy filing requirements for claim against public entity; insufficiency is waived by failure to serve notice of insufficiency.



WATTS v VALLEY MEDICAL (Battle Of Notices) 8 CA4 1050 [See: Phillips v Desert 49 C3 699; CCP 364; GovC 910, 910.8, 911]



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0013 Notice of claim by daughter against public entity does not satisfy filing requirements for parents' claim.



NGUYEN v UCLA MEDICAL (Parents' Tort Claim) 8 CA4 729 [See: GovC 910; Pac Tel v County 106 CA3 183; Shelton v SuperCt 56 CA3 66; Bozaich v State 32 CA3 688; Lewis v City 21 CA3 339; Petersen v City 259 CA2 757]



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0014 Negligent hiring of person who molested boy was not a proximate cause of boy's subsequent molestation of his sister.



EVAN F v HUGHSON UNITED (Molesting Minister) 8 CA4 828



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0015 Statute that requires state to deny teaching credential to certain class of persons does not create tort action for its violation.



STATE v SUPERIOR COURT (Molesting Teacher) 8 CA4 954; [See: EdC 44346(a)(2); Keech v BUSD 162 CA3 464; John R v OUSD 48 C3 438]



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0016 DEPUBLISHED Period of limitations on medical malpractice claim did not begin to run when plaintiff discovered symptoms unless plaintiff also discovered that symptoms were caused by malpractice.



SOSUNOVA v REGENTS (Xray Burns) 8 CA4 1166 [See: CCP 340.5; Gutierrez v Mofid 39 C3 892; Jolly v Eli Lilly 44 C3 1103; Unjian v Berman 208 CA3 881]



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0017 A claim against a health care provider for punitive damages is subject to provisions of CCP 425.13, so long as it arises from the way health care services were rendered, even when the action is characterized as "fraud" or "negligent infliction of emotional distress."



CENTRAL PATHOLOGY v SUPERIOR COURT (MedMal Puni's) 3 C4 181 [See: Bommareddy v SuperCt 222 CA3 1017; CCP 425.13(a)]



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0018 Civil Code section making judicial finding of reasonable probability of success a prerequisite to action against attorney for civil conspiracy is constitutional.



HUNG v WANG (Attorney Conspiracy) 8 CA4 908 [See: CivC 1714.10]



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0019 District attorney attempting to enforce Family Court judgment for support is not in attorney-client relationship with judgment creditor; public employee is absolutely immune from liability resulting from institution of judicial proceeding.



JAGER v COUNTY (DA Malpractice) 8 CA4 294 [See: Monterey v Cornejo 53 C3 1271; W&IC 11478.2; GovC 821.6]



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0020 Plaintiff may recover lost profits resulting from negligently started fire.



McKAY v STATE (Profits Up In Smoke) 8 CA4 937 [See: H&S 13007; J'Aire v Gregory 24 C3 799]



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0021 A municipality may collect punitive damages.



CITY OF SANGER v SUPERIOR COURT (Muni's Puni's) 8 CA4 444 [See: CC 3294; City v Shpegel-Dimsey 198 CA3 1009]



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0022 Market share liability can be applied to action brought by plaintiff who sustained injury as a result of exposure to asbestos in brake pads.



WHEELER v RAYBESTOS-MANHATTAN (Asbestos Market Share) 8 CA4 1152 [See: Sindell v Abbott Labs 26 C3 588]



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0023 Trial court's allocation of damages in approving good faith settlement must be based on information regarding who has settled with whom, the dollar amount of each settlement, how settlement is allocated between issues and/or parties, what nonmonetary consideration has been included and how the parties to the settlement value the nonmonetary consideration.



ALCAL v SUPERIOR COURT (Roofing Allocation) 8 CA4 1121 [See: CCP 887]



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0024 A settlement in which the settling party agrees to participate in the trial and the plaintiff agrees not to execute any judgment obtained against the settling party is valid.



EVERMAN v SUPERIOR COURT (Empty Chair Settlement) 8 CA4 466



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0025 When parties settling litigation stipulate to reversal of the judgment of the trial court, the Court of Appeal should reverse in furtherance of the stipulation.



NEARY v REGENTS (Stipulated Reversal) 3 C4 273



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0026 An expert witness cannot be cross examined on unpublished material that s/he has never read.



McGARITY v DEPARTMENT OF TRANSPORTATION (Unpublished Crash Test) 8 CA4 677 [See: EvC 721; CCP 1033.5(b)(1); Amador v County 7 CA4 1976]



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0027 To punish discovery abuse, a court may award "issue sanctions" precluding evidence to contradict a particular conclusion.



KUHNS v STATE (Issue Sanction) 8 CA4 982 [See: CCP 2023; 2031]



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0028 Bank offering higher interest rates to senior citizens does not thereby violate Unruh Act.



SARGOY v RESOLUTION (Quick Shots) 8 CA4 1039



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0029 A judgment against one spouse may be collected from community property, but a court may not amend the judgment to include the name of the judgment debtor's spouse to facilitate collection in another jurisdiction.



OYAKAWA v GILLETT (Quick Shots) 8 CA4 628



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0030 A clause in an employment contract requiring submission of all claims to arbitration applies to wrongful termination based on racial discrimination.



SPELLMAN v SECURITIES (Quick Shots) 8 CA4 452



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0031 Winner of an arbitration proceeding is entitled to costs even though arbitrator does not specifically award them.



GUEVARA v BRAND (Quick Shots) 8 CA4 995



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0032 If a statute imposes an obligation on a defendant to indemnify another defendant, a good faith settlement does not discharge that liability.



HOUSING AUTHORITY v KANTOR (Quick Shots) 8 CA4 424



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0033 REVIEW GRANTED An insured who shows a potential for liability is entitled to a summary adjudication that the insurer owes a defense, unless the insurer conclusively establishes that there is no potential for coverage.



MONTROSE v SUPERIOR COURT (Quick Shots) 8 CA4 260



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0034 Under an architect's insurance policy agreeing to indemnify a builder for liability resulting from the architect's negligence, the insurer did not owe the builder a defense at all, and did not even owe the builder indemnity unless a judgment was obtained against the architect.



ALEX ROBERTSON v IMPERIAL (Quick Shots) 8 CA4 338



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*(T/AT I,3 - 11/92)

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0035 For damages resulting from an inaccurate audit prepared for a client, an accountant is liable for general negligence only to express third party beneficiaries, for negligent misrepresentation only to persons s/he intended to influence, and for fraudulent misrepresentation to any foreseeable plaintiff.



BILY v ARTHUR YOUNG (Auditor's Liability) 3 C4 370 [See: Ultramares v Touche 174 NE 441; Credit v Andersen 483 NE2 110; Citizens v Timm 335 NW2 361; Rest2 of Torts 552; International v Butler 177 CA3 806]



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0036 REVIEW GRANTED When patient asks for the truth, physician has a fiduciary obligation to inform patient of her/his life expectancy, and may be liable for financial losses resulting from ill-advised business decisions based on misinformation regarding prognosis for longevity.



ARATO v AVEDON (Life Expectancy) 8 CA4 1473 [See: Cobbs v Grant 8 C3 229; Truman v Thomas 27 C3 285; Moore v Regents 51 C3 120]



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0037 Parents who participated in their son's psychotherapy were direct victims of negligence by therapist in treating son and, therefore, were owed a duty of reasonable care to protect them from negligently inflicted emotional distress.



JACOVES v UNITED MERCHANDISING (Son's Suicide) 9 CA4 88 [See: Dillon v Legg 68 C2 728; Molien v Kaiser 27 C3 916; Marlene F. v Affiliated 48 C3 583; Schwartz v Regents 226 CA3 149]



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0038 In answering an insured's question about how much insurance to buy, carrier owed a duty of reasonable care.



FREE v REPUBLIC INSURANCE (Insurance Advice) 8 CA4 1726.



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0039 DEPUBLISHED Bacteria in oysters is not a natural substance and therefore constitutes a product defect.



KILPATRICK v SUPERIOR COURT (Infected Oysters) 8 CA4 1717 [See: Goetten v Owl 6 C2 683; Mix v Ingersoll 6 C2 674; Mexicali Rose v SuperCt 1 C4 617]



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0040 REVIEW GRANTED An employer may be liable to a wrongfully terminated employee for fraud.



HUNTER v UP-RIGHT (Fraudulent Termination) 9 CA4 1446 [See: Foley v Interactive 47 C3 654]



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0041 An employee is not acting within the scope of employment while commuting to or from work.



TRYER v OVS (Lunch Hour Commute) 9 CA4 1476.



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0042 The doctrine of respondeat superior makes an employer vicariously liable for torts committed by an employee acting within the scope of employment even when the employment is not business related. This vicarious liability has not been eliminated by Proposition 51.



MILLER v STOUFFER (Prop 51 Vicarious Liability) 9 CA4 70 [See: CCP 1431.2]



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0043 Breach of fiduciary duty by an attorney is malpractice and is subject to the attorney malpractice statute of limitations.



STOLL v SUPERIOR COURT (Br/Fiduc Duty S/L) 9 CA4 1362 [See: CCP 340.6; 338(b); 343; Welch v Erskine 203 CA3 884]



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0044 Statute of limitations on action for malpractice by accountant begins to run on actual or constructive discovery, not when damage become irremedial.



SCHRADER v SCOTT (Tax Straddle) 8 CA4 1679 [See: Robinson v McGinn 195 CA3 66; McKeown v First Interstate 194 CA3 1225; Laird v Blacker 2 C4 606]



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0045 Sanctions cannot be imposed for rejection of offer of settlement addressed to multiple defendants unless it apportions offer among them.



TAING v JOHNSON (Non-Apportioned Offer) 9 CA4 579 [See: CivC 3291; 1431.2.; CCP 998; American Motorcycle v SuperCt 20 C3 578]



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0046 An award received by a plaintiff against non settling defendants should be reduced by the amount the plaintiff has already received from settling defendants and from a workers' compensation claim.



ENGLE v ENDLICH (WC Benefits Offset) 9 CA4 1152 [See: LabC 3852, 3853, 3856; CCP 877; Witt v Jackson 57 C2 57; American Motorcycle vs. SuperCt 20 C3 578; Associated v WC AppBd. 22 C3 829; Aceves v Regal 24 C3 502]



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0047 Award against non settling defendants should be reduced by amount received by plaintiff in settlement allocated to economic damages, but not amount allocated to non economic damages.



ESPINOZA v MACHONGA (Prop 51 Apportionment) 9 CA4 268 [See: CivC 1431.2; CCP 877]



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0048 In the absence of a specific agreement to the contrary, a defendant against whom a judgment is entered is entitled to credit for advance payments made to plaintiff.



DEWALT v BERKELEY (Credit For Advance Payment) 9 CA4 1087 [See: InsC 11583]



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0049 Under an insurance policy that defined "single occurrence" as repeated exposure to same condition, defendant's repeated negligence in leaving plaintiff with a person whom defendant failed to recognize as a child molester was a single occurrence and subject to the single occurrence policy limitation.



STATE FARM v ELIZABETH N (Single Occurrence) 9 CA4 1232.



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0050 Policy provision that excluded coverage for liability to person residing with insured was ambiguous and should be construed in favor of coverage.



NATIONAL AUTOMOBILE v UNDERWOOD (Children of Divorced Insured) 9 CA4 31.



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0051 Police who were permitted by insured to turn vehicle over to third person did not thereby become "permissive users" under the policy.



CITY v ALLIANZ (Who's The User?) 9 CA4 402 [See: InsC 11580.06(g),(f)]



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0052 DEPUBLISHED A policy provision requiring disputes regarding fee of Cumis Counsel to be submitted to arbitration does not require arbitration of dispute regarding necessity for Cumis Counsel.



CALLAHAN v INDUSTRIAL 9 CA4 1140 and TRUCK v DYNAMIC 9 CA4 1147 (Cumis Counsel Arbitration) [See: SD Fed Credit Union v Cumis 162 CA3 358; CivC 2860; USF&G v SuperCt 204 CA3 1513]



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0053 REVIEW GRANTED A policy provision that excludes uninsured motorist coverage if insured settles with uninsured motorist without carrier's consent applies also to underinsured motorist coverage and settlement with underinsured motorist.



HARTFORD v MACRI (Underinsured Motorist Settlement) 9 CA4 943.



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0054 A policy provision that excludes uninsured motorist coverage if insured fails to sue the uninsured motorist applies also if carrier becomes insolvent and its liabilities are assumed by CIGA.



KORTMEYER v CIGA (Sue Uninsured Motorist) 9 CA4 1285 [See: InsC 1063.1(c)(1); 11580.2(g)&(i)]



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0055 A policy provision that excluded uninsured motorist coverage while insured was driving vehicle owned by insured but insured by a different carrier did not apply when insured was driving a vehicle owned by a corporation of which insured was the sole stockholder.



MID-CENTURY INSURANCE v GARDNER (Other UM Coverage) 9 CA4 1205 [See: InsC 11580.2(2)(c)]



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0056 After having a flat tire, plaintiff was not "occupying the vehicle" while walking along the highway looking for a phone to call for service.



MULLINS v MAYFLOWER (Occupying Vehicle) 9 CA4 416 [See: Cocking v State Farm 6 CA3 965; National v Farmers 95 CA3 102; Menchaca v Farmers 59 CA3 117]



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0057 Tortiousness of interstate activities does not make them "racketeering" activities for purposes of triggering provisions of Federal RICO statute.



GLOBE v SUPERIOR COURT (Joan Collins) 9 CA4 393



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0058 REHEARING GRANTED Civil Code section making admissions conclusive only for purpose of proceeding in which they are made results in a sufficient grant of use and derivative use immunity to prevent the Fifth Amendment privilege against self-incrimination from protecting a civil litigant against being required to respond to demand for admissions; circumstances may justify requiring a defendant sued for punitive damages to furnish evidence of personal wealth well in advance of trial.



DOE v SUPERIOR COURT (Roman Polanski) 8 CA4 1236



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0059 Termination of employment cannot result from negligence, and so a carrier that had issued a policy against negligence liability could not have known that a wrongful termination claim against its insured would be amended to include a negligence cause of action, making its failure to defend the result of excusable neglect.



LISPON v JORDACHE (Negligent Termination) 9 CA4 951



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0060 DEPUBLISHED A voluntary dismissal made in response to premature dismissal by court satisfies the requirement of final termination of the underlying action, justifying suit for malicious prosecution.



OGLE v PRICE (MP After Settlement) 9 CA4 1625



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0061 Absolute immunity from tort liability exists for statements made in a judicial pleading, and such statements therefore cannot furnish the basis for a cause of action based on bad faith.



CAL PHYSICIANS v SUPERIOR COURT (Pld'g In Bad Faith) 9 CA4 1321



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0062 Punitive damages are available against SCIF as against any privately operated insurance carrier.



COURTESY v SUPERIOR COURT (SCIF Puni's) 8 CA4 1504



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0063 Fact that "neutral" arbitrator had previously served as "party" arbitrator for one of the parties to an arbitration was a sufficient business relationship to require disclosure, and failure to make such disclosure was therefore ground for vacating arbitration award.



NEAMAN v KAISER (Not-So-Neutral Arbitrator) 9 CA4 1170



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0064 A valid choice of law provision in a contract designating Hong Kong law as the law to be applied to disputes applies to tort disputes arising from the contractual relationship.



NEDLLOYD v SUPERIOR COURT (Hong Kong Law) 3 C4 459.



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*(T/AT I,4 - 12/92)

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0065 REVIEW GRANTED A triable issue of fact may exist as to whether defendant acted unreasonably by failing to print warnings in a foreign language on the label of an over-the-counter drug.



RAMIREZ v PLOUGH (Foreign Language Warnings) 9 CA4 1895 [See: H&S 26638; 21 USC 352; CalConst III(6); 53 FedReg 21633, 21636; 21 CFR 201.15(b)(2)]



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0066 DEPUBLISHED Statutory immunity against liability of publicly employed mental health professionals for damage resulting from confining or failing to confine person for mental illness applies only to acts that public employee has legal authority to perform.



CRAWFORD v UCSD (Demonic Possession) 10 CA4 149 [See: W&I 5000ff; GovC 820.2, 855.8; Fish v Regents 246 CA2 327]



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0067 In determining whether juror misconduct occurred during deliberation, court may consider overt acts of jurors but not subjective reasoning of jurors and, therefore, may not consider jurors' misunderstanding of definition given by court in jury instructions.



MESECHER v COUNTY (Twisted Arm) 9 CA4 1677 [See: 42 USC 1983, 1988]



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0068 After trial, juror misconduct cannot be established by hearsay evidence. No appeal is available from trial court's refusal to excuse juror for cause, unless appellant exhausted all peremptory challenges during jury selection process.



BURNS v 20TH CENT (Insured Jurors) 9 CA4 1666 [See: Ev 1150(a), 1200]



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0069 DEPUBLISHED In employment discrimination claim, if defendant shows legitimate reason for employment action, summary judgment for defendant should be granted unless plaintiff can raise triable issue of whether reason given by defendant was a pretext for discrimination.



CUMMINGS v BENCO (Aging Janitor) 10 CA4 745 [See: GovC 12941; 42 USC 2000e; McDonnell Douglas v Green 411 US 792; Price Waterhouse v Hopkins 490 US 228]



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0070 In wrongful termination claim, plaintiff is entitled to discovery of personnel records of third parties only upon showing of relevance and compelling need.



HARDING v SUPERIOR COURT (3rd Party Personnel Records) 10 CA4 7 [See: Board v SuperCt 119 CA3 516; 48 CFR 3.104-5(a), 15.413-1(a), 3.104-5(f)]



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0071 Once court has dismissed case pursuant to agreement of parties, court no longer has power to vacate dismissal except on request of parties to the litigation. A plaintiff who consented to dismissal of third party action, thereby depriving WC carrier of right to intervene, may be liable to WC carrier for resulting damage.



O'DELL v FREIGHTLINER (Untimely Intervention) 10 CA4 645 [See: LabC 3600, 3852, 3853, 3858, 3859, 3860; Board v Glover 34 C3 906; CCP 581(1)]



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0072 Labor Code section creating exception to exclusivity of WC remedy by permitting suit against co-employee or employer for "wilful injury" applies only if person causing the injury had the intent to injure.



SOARES v CITY (Wilful Injury) 9 CA4 1822 [See: Lab 3601(a)(1); Johns-Manville v SuperCt 27 C3 465; Williams v International 129 CA3 810]



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0073 Proposition 51 does not affect vicarious liability of vehicle owner for negligence of permissive user.



RASHTIAN v BRAC-BH (Prop 51 Permissive User) 9 CA4 1847 [See: CivC 1431.2; Veh 17150; Miller v Stouffer 9 CA4 70]



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0074 After making payment under Medical Payments coverage to injured claimant, carrier is entitled to credit for such payment against economic damages awarded to claimant after trial.



SCHUMACHER v AYERVE (Med Pay Credit) 9 CA4 1860



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0075 Appeal from judgment does not automatically stay execution of costs awarded as sanction for failing to settle in good faith.



BANK v SUPERIOR COURT (Stay of Sanctions) 3 C4 797 [See: CCP 998, 916, 917.1(a), 1032(b); McCallion v Hibernia 98 C 442]



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0076 Insurance policy that affords coverage for accidental occurrence does not cover liability for fraud, and carrier, therefore, is not obligated to defend insured against such a claim.



HURLEY v STATE FARM (Accidental Fraud) 10 CA4 533



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0077 The D'oench Duhme doctrine, which prohibits enforcement of any agreement not in writing that might reduce value of FDIC's interest in any banking institution, applies to a state court action for misrepresentation against a bank.



RESOLUTION v WINSLOW (D'oench Duhme Doctrine) 9 CA4 1799 [See: D'Oench, Duhme v FDIC 315 US 447; 12 USC 1823, 1441a(l)(1)]



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0078 Law of the case doctrine does not apply to summary denial of petition for writ.



KOWIS v HOWARD (Law Of The Case) 3 C4 888 [See: Cal Const VI 14; People v Medina 6 C3 484; Hagan v SuperCt 57 C2 767; Richer v SuperCt 63 CA3 748; Pigeon Point v Perot 59 C2 227]



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*(T/AT I,5 - 1/93)

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0079 DEPUBLISHED A defendant who engages in conduct that creates a danger that third persons will commit violent acts against plaintiff owes plaintiff a duty of reasonable care to protect her/him from such acts.



WILKINS v SIPLIN (Violent Husband) 10 CA4 1605.



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0080 REHEARING GRANTED In general, a defendant owes a plaintiff a duty to act reasonably to protect the plaintiff against dangers resulting from the defendant's acts unless it is not foreseeable that the general kind of conduct in which the defendant engaged could lead to the general type of harm that the plaintiff sustained.



HENSON v SO CAL EDISON (Electric Kite) 10 CA4 1302.



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0081 REVIEW GRANTED In general, a defendant owes a plaintiff a duty to act reasonably to protect the plaintiff against dangers resulting from the defendant's acts unless it is not foreseeable that the general kind of conduct in which the defendant engaged could lead to the general type of harm that the plaintiff sustained. When a defendant asks a plaintiff to help apprehend an armed robber, the risk that the plaintiff will be injured is sufficiently foreseeable to impose on defendant a duty of reasonable care.



ROBBINS v SOUTHLAND CORP (Stop That Guy) 10 CA4 1194 [See: Forrand v Foodmaker 182 CA3 196]



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0082 A jury's finding by special verdict that the defendant's conduct was not a proximate cause of the plaintiff's injury was sufficient to justify a judgment for defendant, even though jury's finding was unclear as to whether defendant was negligent.



CONTRERAS v GOLDRICH (Missing Element) 10 CA4 1431.



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0083 Defendant's initial failure to warn plaintiff's custodian of plaintiff's tendency to escape from custody may have been negligent but was not a proximate cause of an injury sustained by plaintiff after plaintiff made several escapes from the unwarned custodian, thus giving the custodian actual notice of plaintiff's tendency to escape.



BROOKHOUSER v STATE (Escaped Patient) 10 CA4 1665 [See: GovC 856.2(a)(2)]



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0084 Plaintiff's demand for punitive damages in the complaint was sufficient notice to defendant to justify the award of punitive damages as part of a default judgment against defendant, and the amount of punitive damages could validly be based on factors other than evidence of defendant's personal wealth.



CUMMINGS v OCCUPATIONAL (Default Puni's) 10 CA4 1291 [See: CCP 425.10; CivC 3295(e)]



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0085 Punitive damages and damages for emotional distress are available in action for attorney malpractice only if based on fraud, but to withstand demurrer, fraud claim must be based on highly specific allegations of fact.



SMITH v SUPERIOR COURT (Emotional Distress / Legal Malpractice) 10 CA4 1033 [See: Quezada v Hart 67 CA3 754; Molien v Kaiser 27 C3 916; Burgess v SuperCt 2 C4 1064; Marlene F v Affiliated 48 C3 583]



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0086 Damages received in wrongful termination suit are not wages, and employer, therefore, may not deduct withholding tax from amount of judgment.



LISEC v UNITED AIRLINES (Withheld Damages) 10 CA4 1500 [See: Foley v Interactive 47 C3 654]



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0087 As part of a settlement, a plaintiff may accept and enforce an assignment by the settling defendant of its claim against non-settling defendants for indemnity under American Motorcycle.



BUSH v SUPERIOR COURT (American Motorcycle Assignment) 10 CA4 1374 [See: Li v Yellow 13 C3 804; American Motorcycle v SuperCt 20 C3 578; Engle v Endlich 9 CA4 1152]



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0088 DEPUBLISHED Plaintiff's recovery against non-settling defendants should be reduced by cash already received in settlement from settling defendant and by value of Bad Faith claim assigned to plaintiff as part of settlement.



ROMERO v DERMENDZHAYAN (Bad Faith Claim Assignment) 10 CA4 802 [See: CivC 1431.1; CCP 877]



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0089 In clear liability case, fact that insurance company offered only $8,500 prior to award of $150,000 raises a triable issue of fact as to whether insurer failed to negotiate in good faith.



HULETT v FARMERS INSURANCE (Royal Globe Legacy) 10 CA4 1051 [See: InsC 790; Royal Globe v SuperCt 23 C3 880; Moradi-Shalal v Firemans's 46 C3 287]



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0090 Insurance coverage against liability for bodily injury does not apply to emotional distress resulting from loss of investment. Coverage against liability for "accident" or "occurrence" does not apply to damage resulting from fraud. Coverage against liability for "advertising injury" applies only to common law claim of unfair competition.



CHATTON v NATIONAL UNION (Dictionary Definition) 10 CA4 846 [See: Molien v Kaiser 27 C3 916; Bank of the West v SuperCt 2 C4 1254]



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0091 An insurance policy making notice of claim a prerequisite to coverage (rather than simply requiring it for the efficient administration of claims) does not afford coverage for occurrences described in notices of claim received after termination of policy period.



HELFAND v NATIONAL UNION (Companion to Chatton) 10 CA4 869.



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0092 A public entity that was justified in refusing to defend a tort action against an employee was not obligated to pay the judgment rendered against the employee.



RIVAS v CITY (Shooting Indemnity) 10 CA4 1110 [See: GovC 825, 825.2, 995.2]



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0093 Individual condominium owners are not immune from liability for injuries occurring in common areas of condominium.



RUOFF v HARBOR CREEK (Condo Owners' Immunity) 10 CA4 1624 [See: CivC 1365.7]



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0094 Statute of limitations in malpractice action brought against an attorney who started client's products liability lawsuit after statute of limitations on products liability claim ran out began to run when client discovered attorney's mistake, not when product liability action started by attorney was finally dismissed.



FINLAYSON v SANBROOK (S/L For S/L) 10 CA4 1436 [See: CCP 340.6]



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0095 Statute of limitations on action for reformation of insurance policy begins to run upon discovery of mistake that is the basis of the action for reformation.



NORTH STAR v SUPERIOR COURT (Policy Reformation Tolling) 10 CA4 1815 [See: CCP 338; Lambert v Commonwealth 53 C3 1072]



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0096 Against public entity, claim that identified place where accident occurred and was served on directors of the entity, but that identified the public entity as a "Doe," substantially complied with requirements of statute, so subsequent substitution of true name of public entity was not barred by statute of limitations.



CARLINO v COUNTY (Public Entity Doe) 10 CA4 1526 [See: GovC 900, 945; CCP 474]



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0097 Trial court has no power to dismiss an arbitration for delay in prosecution. While trial is stayed pending arbitration, court may not dismiss litigation for delay in prosecution.



BROCK v KAISER (Arbitration Stay) 10 CA4 1790 [See: CCP 583.310; Lockhart v Kaiser 103 CA3 891; Byerly v Sale 204 CA3 1312]



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0098 Justifiable delay in serving complaint should not lead to dismissal for failure to prosecute diligently. [Note: Read case or listen to ADVANCE TAPE for facts justifying delay]



YAO v ANAHEIM (Delayed Service) 10 CA4 1024 [See: CCP 583.420(a); Putnam v Clague 3 CA4 542]



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0099 Service of pleadings by Registered Mail on Japanese corporation in Tokyo is not valid and should be quashed even though corporation received the pleadings.



HONDA v SUPERIOR COURT (Hague Convention) 10 CA4 1043



------------



0100 President of defendant corporation cannot be deposed, in the absence of a showing by plaintiff that president has personal knowledge of facts in issue.



LIBERTY v SUPERIOR COURT (Presidential Deposition) 10 CA4 1282



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0101 WC is exclusive remedy for termination because of handicap resulting from job-related injury. plaintiff's failure to comply with administrative conditions precedent to suit is excused if it resulted from error of administrative agency.



DENNEY v UNIVERSAL (Agency's Error) 10 CA4 1226.



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*(T/AT I,6 - 2/93)

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0102 REVIEW GRANTED Owner of mall owes a duty of reasonable care to protect employees of tenants against attack by third persons.



MILLER v PACIFIC PLAZA (Mall Attack) 11 CA4 793



------------



0103 A physician recommending a procedure has an obligation to provide the patient with material information, which may but does not necessarily include the existence of a differing school of thought the members of which might make a different recommendation.



MATHIS v MORRISSEY (Schools of Thought) 11 CA4 332 [See: Cobbs v Grant 8 C3 229; Truman v Thomas 27 C3 285; Vandi v Permanente 7 CA4 1064]



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0104 REVIEW GRANTED A pharmacist filling a prescription for a nine month old child owes the child's parent a duty to act reasonably to protect the parent against emotional distress that might result from improperly filling the prescription or providing directions for its use.



HUGGINS v LONGS (Wrong Dose) 11 CA4 550 [See: Dillon v Legg 68 C2 728; Ochoa v SuperCt 39 C3 159; Thing v La Chusa 48 C3 644; Molien v Kaiser 27 C3 916; Marlene F v Affiliated 48 C3 583]



------------



0105 Gas company does not owe customers a duty to purge supply pipes and meters of gas to prevent damage from spreading fire.



LOWENSCHUSS v SO CAL GAS (Purge The Pipes) 11 CA4 496 [See: Niehaus v Contra 159 C 305; Moch v Rensselaer 159 NE 896]



------------



0106 The doctrine of primary assumption of the risk relieves participants in sport of sailing of duty to act reasonably to protect each other.



STIMSON v CARLSON (A/R Sailing) 11 CA4 1201 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339]



------------



0107 An intra-uterine device (IUD) is a prescription drug and is not defective in design if accompanied by adequate warnings of dangers associated with its use.



PLENGER v ALZA (IUD Design Defect) 11 CA4 349 [See: Barker v Lull 20 C3 413; Brown v SuperCt 44 C3 1049]



------------



0108 Breast implant litigations should be coordinated.



McGHAN v SUPERIOR COURT (Breast Implant Coordination) 11 CA4 804 [See: CCP 404 ff]



------------



0109 Parol evidence may establish terms additional to those of written employment contract not intended to be a full and final integration of the agreement of the parties.



ESBENSEN v USERWARE (Self-Renewing Emp K) 11 CA4 631 [See: Foley v Interactive 47 C3 654]



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0110 So long as the defendant is identified in the body of a DFEH complaint made by plaintiff, a "right to sue" letter issued by DFEH confers on plaintiff the right to sue that defendant, even though defendant's name is not contained in the "right to sue" letter or in the caption of the DFEH complaint.



MARTIN v FISHER (Unnamed Supervisor) 11 CA4 118 [See: GovC 12900 ff; 42 USC 2000a etseq]



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0111 So long as the defendant is identified in the body of a DFEH complaint made by plaintiff, a "right to sue" letter issued by DFEH confers on plaintiff the right to sue that defendant, even though defendant's name is not contained in the "right to sue" letter or in the caption of the DFEH complaint. Jury's finding that employer by the acts of its employee did not unlawfully discriminate is a determination that the employee did not unlawfully discriminate.



SAAVEDRA v OC CTSA (Unnamed Supervisor Companion) 11 CA4 824



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0112 REVIEW GRANTED In a defamation action based on a statement made on an occasion when the common interest privilege might apply, plaintiff has burden of showing that the statement was made with malice.



LUNDQUIST v REUSSER (Common Interest Privilege) 11 CA4 667 [See: Brown v Kelly 48 C3 711; CivC 47(c)]



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0113 Statements made as part of preparation to testify at judicial proceeding are absolutely immune from defamation liability. Statements made to Congressional committee are absolutely immune from defamation liability, and repetition in media does not result in liability unless defendant cooperated in or authorized such repetition. Statements made by persons required to investigate and report on child abuse are absolutely immune from defamation liability.



SPITLER v CII (McMartin Pre-School) 11 CA4 432 [See: CivC 47(b)(2); Silberg v Anderson 50 C3 205; PenC 11172]



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0114 REVIEW GRANTED Except for intentionally inflicted injuries, holder of urban or rural land is immune from liability to all persons not personally invited who are using the land for recreational purposes without charge.



HARMON v ST. JOSEPH'S (Church Bike Path) 11 CA4 1071 [See: CivC 846]



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0115 REVIEW GRANTED One who diverts surface waters into a natural watercourse into which they would have flowed anyway is immune from liability to downstream owners.



LOCKLIN v CITY (Watercourse) 11 CA4 1 [See: Cal Const Art I, Sec 19; San Gabriel v LA 182 C 392; Archer v City 19 C2 19; Keys v Romley 64 C2 396; Ektelon v City 200 CA3 804; Weaver v Bishop 206 CA3 1351]



------------



0116 An insurer that provides a defense is not bound by a stipulated judgment entered into by its insured without the participation or consent of the insurer.



WRIGHT v FIREMAN'S (Insured's Stipulated J) 11 CA4 998 [See: InsC 11580(b)(2)]



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0117 An insurer is not liable to its insured for bad faith refusal to settle within policy limits unless a judgment is rendered against the insured in excess of the policy limits.



FINKELSTEIN v 20TH CENT (Bad Faith W/O Judgment) 11 CA4 926 [See: Comunale v Traders 50 C2 654]



------------



0118 An insurer is not required to settle an Uninsured Motorist claim during pendency of claimant's workers' compensation claim.



RANGEL v INTERINSURANCE (UM/WC Delay) 4 C4 1 [See: InsC 11580.2]



------------



0119 Excess insurance coverage for sums "uncollectible" from primary carrier drops down to cover sums uncollectible because of primary carrier's insolvency. Misrepresentation by insured in applying for products liability coverage does not justify recision of motor vehicle liability coverage contained in same policy.



COCA COLA v COLUMBIA (Drop Down) 11 CA4 1176 [See: Wilkinson v Standard 180 C 252]



------------



0120 DEPUBLISHED A triable issue of fact existed as to whether 12 year old boy's touching of 9 month old girl's vagina constituted "sexual abuse" as excluded by insurance policy.



HEATHER F. v TOPA (Sexual Abuse Exclusion) 11 CA4 54 [See: InsC 533; PenC 26(1); JC Penney v MK 52 C3 1009]



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0121 If policy language makes per occurrence limit subject to per person limit, carrier is not required to pay more than the per person limit to any one claimant, regardless of the number of claimants.



NATIONWIDE v DEVLIN (Per Occurrence Limit) 11 CA4 81 [See: Standard v Winget 197 F2 97]



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0122 Policy provision excluding coverage if vehicle is operated by designated driver applies even where designated driver is driving without insured's permission.



YAMASAKI v MERCURY (Designated Driver Exclusion) 11 CA4 830 [See: InsC 11580.1(d)(1)]



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0123 A policy provision that excludes uninsured motorist coverage if insured settles with uninsured motorist without carrier's consent does not apply to underinsured motorist coverage or settlement with underinsured motorist.



HARTFORD v MACRI (Underinsured Motorist Settlement) 4 C4 318



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0124 Allegation in pleading that plaintiff first began noticing problems "on or about" a certain date is not a conclusive admission that starts the statute of limitations for fraud running on that date under the discovery rule.



KIRBY v SEENO (On or About) 11 CA4 1059 [See: CCP 338(d)]



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0125 Award against non-settling defendant should be reduced by amount received by plaintiff in settlement, but non-settling defendant may be required to pay pre-judgment interest on total award, with interest on amount received in settlement calculated to the date of settlement, and interest on balance calculated to date of judgment.



NEWBY v VROMAN (Interest On Settlement) 11 CA4 283 [See: CivC 3288; CCP 877]



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0126 An insurer's failure to inform insured until after responsive pleading was due that it was declining to defend excused insured's neglect to file responsive pleading in time and justified vacating default entered as a result, particularly where the only prejudice to the plaintiff resulted from the plaintiff's opposition to the motion to vacate the default.



ROGALSKI v NABERS (Vacate Default) 11 CA4 816



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--------------------

*(T/AT I,7 - 3/93)

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------------



0127 Leaving keys in ignitions of passenger cars does not significantly increase the risk of theft by an incompetent driver and, therefore, does not result in liability to a remote plaintiff.



AVIS v SUPERIOR COURT (Hot Car) 12 CA4 221 [See: Richardson v Ham 44 C2 772; Ballard v Uribe 41 C3 564; Hergenrether v East 61 C2 440; Richards v Stanley 43 C2 60; Enders v Apcoa 55 CA3 897; Palma v U.S. Industrial 36 C3 171]



------------



0128 Since statute makes dog owner liable to person bitten, court cannot conclude that a dog owner owes no duty to a person bitten by the dog, and primary assumption of the risk cannot be applied.



DAVIS v GASCHLER (A/R Dogbite) 11 CA4 1392 [See: Li v Yellow Cab 13 C3 804; Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339; CivC 3342(a); Nelson v Hall 165 CA3 709]



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0129 REVIEW GRANTED / REVIEW DISMISSED / ORIGINAL DECISION PARTIALLY PUBLISHED If exposure to toxic substance increases the possibility of cancer, costs of future medical monitoring are recoverable in a successful toxic tort suit.



MIRANDA v SHELL OIL (Medical Monitoring) 12 CA4 28 [See: Ayers v Jackson 525 A2 287]



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0130 REVIEW GRANTED In punitive damage claim, if conduct of all defendants was equally reprehensible, ratios of punitive damages to compensatory damages should be approximately equal for all defendants.



HILGEDICK v KOEHRING (Disparate Ratios) 12 CA4 330 [See: Pacific Mut v Haslip 499 US __]



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0131 In a defamation case against a newspaper, the statute providing for service of a demand for retraction on the "publisher" requires service on the owner of the newspaper, but service can be effected by delivery to a person designated by the owner or to any employee, so long as the owner receives knowledge within the specified statutory period.



FREEDOM v SUPERIOR COURT (Demand For Retraction) 4 C4 652 [See: CivC 48a(1)]



------------



0132 In a premises liability case against a government entity, res ipsa loquitur cannot be used to satisfy the statutory requirement that the public entity have prior notice of the dangerous condition or that it be created by a public employee.



BROWN v POWAY UNIFIED (Lunch Meat On The Shoe) 4 C4 820 [See: GovC 835(a)]



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0133 If the design of an intersection was approved by a legislative body, the government entity maintaining the intersection is immune from liability for damage resulting from the design unless the plaintiff establishes that the reasonable legislative body would not have approved of the design, and the immunity is not lost unless subsequent physical changes would have prevented a reasonable legislative body from approving of the design immediately prior to the damage.



COMPTON v CITY OF SANTEE (Intersection Design Immunity) 12 CA4 591 [See: GovC 830.6; Bane v State 208 CA3 860]



------------



0134 In a lawsuit against the state for damage resulting from allegedly dangerous design of DMV building, information about collisions between vehicles and other DMV buildings is discoverable because it could lead to evidence that the state had notice of the dangerous design.



MORFIN v STATE (Other DMVs) 12 CA4 812 [See: CCP 2017]



------------



0135 A government law enforcement agency is not immune from liability for damage resulting from a high speed vehicle pursuit unless the agency has a vehicle pursuit policy that contains specific guidelines for enforcement personnel.



COLVIN v CITY (Pursuit Policy) 11 CA4 1270 [See: VehC 17004; 17004.7]



------------



0136 Although statutes do not require the State to comply with filing requirements in asserting a claim against a municipality, municipalities have the power to require the State to do so.



CITY v SUPERIOR COURT (State Claim v City) 12 CA4 894 [See: GovC 905; 935]



------------



0137 REVIEW GRANTED After sexually molesting a child, insured's attempts to communicate with her in an attempt to prevent her from testifying against him were willful acts for which liability coverage is excluded by statute.



FIRE INSUR v SUPERIOR COURT (Communication With Molestation Victim) 12 CA4 457 [See: InsC 533; JC Penney Cas v MK 52 C3 1009]



------------



0138 Frivolous litigation and bad faith litigation tactics by insured are willful acts for which liability coverage is excluded by statute.



CAL CAS v MARTOCCHIO (Frivolous Litigation Sanctions) 11 CA4 1527 [See: CCP 128.5; InsC 533; JC Penney v MK 52 Cal.3d 1009]



------------



0139 Definitions of insurance policy terms, "willful act," "expected or intended," "accident," "occurrence," and "sudden." Statute does not require liability insurer to provide coverage for negligence.



SHELL v WINTERTHUR (Shell Cleanup) 12 CA4 715 [See: InsC 533]



------------



0140 REVIEW GRANTED Before determining underlying questions of coverage, court may order insurance carrier to pay insured's defense costs; apportionment of defense costs among carriers need not be based on ratios of policy limits.



MONTROSE v AMERICAN MOTORISTS (Defense Costs) 12 CA4 846 [See: Gray v Zurich 65 C2 263]



------------



0141 DEPUBLISHED Under a liability policy that covers damage resulting from trademark infringement, an insurer owed the insured a defense against an action for an injunction if the claim letter initially received by the insured and the insurer's independent investigation indicated that the plaintiff might amend to include a claim for damages.



FEINBERG v CANADIAN (Rusty's Potato Chips) 12 CA4 878 [See: Gray v Zurich 65 C2 263]



------------



0142 Although characterized as "constructive wrongful termination" committed by maintaining working conditions that led to intolerable physical and emotional suffering by employee, such a claim is for job-related physical and mental suffering, for which workers' compensation is the exclusive remedy; employer's liability carrier had obligation to defend and raise exclusivity of workers' compensation as a defense.



WONG v SCIF (Wrongful Termination Exclusion) 12 CA4 686 [See: Gray v Zurich 65 C2 263; Panopulos v Westinghouse 216 CA3 660]



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0143 An automobile liability policy that excluded coverage for a non-owned vehicle used in business "except a private passenger vehicle" covered a private passenger vehicle used in business.



MERCURY v CHECKERBOARD (Missing Preposition) 12 CA4 495 [See: InsC 11580.1(b)(4)]



------------



0144 Under a liability policy that covers claims made during the policy period, a claim is not made until the insured receives notice of it.



SAFECO v EMPLOYER'S (Date Of Claim) 11 CA4 1403.



------------



0145 An expert witness may testify if s/he was identified in the statutory notice given to proponent's adversary, even though the testimony was inaccurately described in that notice.



MARTINEZ v CITY (Inaccurate Disclosure) 12 CA4 425 [See: CCP 2034 etseq]



------------



0146 The testimony of an expert regarding the permeability rate of soil is opinion testimony rather than fact testimony and should be excluded if the identity of the expert was not previously made available in response to a statutory demand.



FISH v GUEVARA (Unlisted Expert) 12 CA4 142 [See: CCP 998; 2034]



------------



0147 REVIEW GRANTED Arbitration required by contract is not reviewable by writ of mandate and, therefore, is not an "official proceeding" in which witnesses are immune from liability for statements made during depositions.



MOORE v CONLIFFE (Unofficial Arbitration) 12 CA4 234 [See: CivC 47; Hackethal v Weissbein 24 C3 55; Slaughter v Friedman 32 C3 149; Moncharsh v Heily 3 C4 1]



------------



0148 Successful defendant in age discrimination suit under FEHA should not receive costs and attorney fees unless claim is shown to have been frivolous.



CUMMINGS v BENCO (Aging Janitor Attorney Fees) 11 CA4 1383 [See: GovC 12965]



------------



0149 REVIEW GRANTED A country club with a selective membership policy is not a "business establishment" under the Unruh Act.



WARFIELD v PENINSULA (Men Only) 12 CA4 178 [See: CivC 51; Ezekial v Winkley 20 C3 267]



------------



0150 REVIEW GRANTED A court may grant a motion for summary judgment on a ground not stated by the moving party.



JUGE v COUNTY (Unstated Ground) 12 CA4 59



------------



0151 Dismissal of one defendant's cross-complaint against another for equitable indemnity does not prevent subsequent action for contribution.



COCA-COLA v LUCKY (Indemnity v Contribution) 11 CA4 1372 [See: CCP 875]



------------



0152 Negligence action against accountants by guarantors of loan is based on a different relationship than the debtor's claim against the accountants, so amendment of debtor's complaint to add action by guarantors does not relate back to time debtor's complaint was filed.



AMERICAN WESTERN v PRICE WATERHOUSE (Guarantors' Complaint) 12 CA4 39 [See: CCP 583.410; Barrington v A. H. Robins 39 C3 136; Bily v Arthur Young 3 C4 370]



------------



0153 Violation of zoning ordinance is not necessarily a private nuisance.



STELL v JAY HALES (Zoning Nuisance) 11 CA4 1214



------------



0154 If tortious contamination of the ground can be abated, it should be classified as a continuing trespass or continuing nuisance, and statute of limitations does not begin to run until plaintiff commences action.



CAPOGEANNIS v SUPERIOR COURT (S/L Contaminated Ground) 12 CA4 668 [See: Spaulding v Cameron 38 C2 265]



------------



0155 Identities of members of hospital committee who participated in medical peer evaluation are not discoverable.



CEDARS-SINAI v SUPERIOR COURT (Medical Peer Evaluation) 12 CA4 579 [See: EvC 1157; Matchett v SuperCt 40 CA3 623]



------------



0156 Following a collision, a document that purported to release from liability a negligent driver and "any and all other persons, firms and corporations, whether herein named or referred to or not..." had the effect of realeasing the manufacturer of a vehicle involved in the collision from possible products liability.



GENERAL MOTORS v. SUPER CT (SAN BERNARDINO) (General General Release) 12 Cal. App. 4th 435 [See: CCP 877]



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--------------------

*(T/AT I,8 - 4/93)

--------------------

------------



0157 Insurance brokers who undertook to fill out insured's application for coverage and advise insured as to the application owed insured a duty of reasonable care.



KURTZ v INSURANCE COMMUNICATORS (Broker's Misrepresentation) 12 CA4 1249.



------------



0158 An attorney who assisted his former partner by moving the former partner's possessions while former partner was in the hospital did not thereby acquire a duty of reasonable care to former partner's client.



DANIELS v DeSIMONE (Ex Partner's Malpractice) 13 CA4 600 [See: Lucas v Hamm 56 C2 583]



------------



0159 A plaintiff who was in an automobile with her foster daughter when the defendant negligently struck the vehicle was a direct victim of the defendant's negligence and may recover for emotional distress resulting from witnessing her foster daughter's death.



LONG v PKS, INC. (Foster Daughter) 12 CA4 1293 [See: Dillon v Legg 68 C2 728; Thing v LaChusa 48 C3 644; Molien v Kaiser 27 C3 916; Burgess v SuperCt 2 C4 1064]



------------



0160 Violation of a statute requiring pathologic analysis of surgically removed tissue was not a cause of patient's blood transfusion following surgery and should not result in a presumption of negligence in an action for damages resulting from the blood transfusion.



TRAXLER v VARADY (HIV Transfusion) 12 CA4 1321 [See: EvC 669]



------------



0161 By inducing a witness to sign a statement implicating a murder suspect whom the police knew to be dangerous, the police department acquired a duty of reasonable care to protect the witness against attack by the suspect.



WALLACE v CITY (Unprotected Witness) 12 CA4 1385



------------



0162 In the absence of specific guidelines to enforcement officers, a high speed vehicle pursuit policy does not confer immunity on a government law enforcement agency even though the policy is identical to one approved by law enforcement associations.



PAYNE v CITY OF PERRIS (Pursuit Policy) 12 CA4 1738 [See: Kishida v State 229 CA3 329; Weiner v City 229 CA3 1203; Colvin v City 11 CA4 1270; VehC 17004; 17004.7]



------------



0163 There can be no award of punitive damages unless the defendant is found liable in tort.



MYERS v INTERFACE (Br/K Puni's) 13 CA4 949 [See: CivC 9294]



------------



0164 Punitive damages should bear some relationship to the defendant's personal wealth and may not be determined solely on the basis of defendant's income.



LARA v CADAG (Financial Condition) 13 CA4 1061



------------



0165 Action brought under FEHA for sexual harassment is a tort action and subject to sanctions for failure to settle in good faith including pre-judgment interest on punitive damages award; out of court statements made to employer are not excludable as hearsay if offered to prove employer's knowledge rather than truth of the statements; wilful suppression of evidence justified conclusion that evidence would have been damaging to party suppressing it; attorney fees of $450 per hour were not excessive.



BIHUN v AT&T (Sexual Harassment Evidence) 13 CA4 976 [See: CivC 3291; GovC 12940]



------------



0166 A contract clause permitting the recovery of attorney fees by the prevailing party in an action arising from the contract applies to an action for fraud in inducing a contract, even though such an action is not an action to enforce a contract.



LERNER v WARD (Atty Fees Clause) 13 CA4 155 [See: CivC 1717; CCP 1021]



------------



0167 Workers' compensation is not the exclusive remedy for job-related defamation of employee by employer; workers' compensation is the exclusive remedy for termination because of employee's absence to receive medical attention.



DAVARIS v CUBALESKI (Employer Defamation) 12 CA4 1583 [See: Livitsanos v SuperCt 2 C4 744; Foley v Interactive 47 C3 654; Howland v Balma 143 CA3 899]



------------



0168 An employer who did not inform an employee of the possible connection between substances in the workplace and the employee's illness did not fraudulently conceal that information because the employee already knew about it and the employer did not.



DAVIS v LOCKHEED (Cancer Concealment) 13 CA4 519 [See: LabC 3600, 3602; Johns-Manville v SuperCt 27 C3 465; Foster v Xerox 40 C3 306]



--------------------



0169 Immunity of driver of borrowed vehicle does not protect owner from vicarious liability under permissive-user statute.



GALVIS v PETITO (Vicarious Immunity) 13 CA4 551 [See: VehC 17150; Baugh v Rogers 24 C2 200]



------------



0170 Discovery of medical malpractice occurs when patient suspects or should suspect that injury was the result of wrongdoing by doctor, and no later than time when patient consults with an attorney concerning a possible lawsuit against the doctor.



DOLAN v BORELLI (Carpal Tunnel) 13 CA4 816 [See: CCP 340.5; Jolly v Eli Lilly 44 C3 1103]



------------



0171 Spoliation of evidence is an invasion of a property right and is subject to the two year statute of limitations.



AUGUSTA v UNITED SERVICE (Spoliation Statute) 13 CA4 4 [See: CCP 339, 340; Coca-Cola v SuperCt 233 CA3 1273]



------------



0172 DEPUBLISHED In defamation action against newspaper, time to serve demand for notice of retraction begins to run from date of publication.



FOREMAN v LESHER COMMUNICATIONS (Time For Retraction) 13 CA4 903 [See: CivC 48a]



------------



0173 A court may dismiss an action for lack of diligence without considering whether delay has resulted in prejudice, if the delay was neither the result of a conscious decision by plaintiff's attorney nor justified by a credible and reasonable excuse.



DUBOIS v CORROON & BLACK (Inexcusable Delay) 12 CA4 1689 [See: 0CCP 583.420; Putnam v Clague 3 CA4 542]



------------



0174 An order reversing a judgment of dismissal and containing the phrase "the action is ordered set for trial" did not relieve the plaintiff of the burden of moving for a trial date.



GREENE v HOWMEDICA (Ordered Set For Trial) 13 CA4 912 [See: CCP 583.350]



------------



0175 Service of subpoena on prospective witness three months prior to trial date was sufficiently diligent to require granting of motion for continuance when witness could not be located at time of trial.



JURADO v TOYS "R" US (Missing Doctor) 12 CA4 1615 [See: CCP 595.4]



------------



0176 Infant plaintiff was bound by an arbitration agreement signed by his mother before the plaintiff's conception.



PIETRELLI v PEACOCK (Preconception Agreement) 13 CA4 943



------------



0177 Although statute requires arbitration of fee disputes concerning "Cumis Counsel," disputes regarding the question of whether "Cumis Counsel" is required must be decided by the court.



HANDY v FIRST INTERSTATE (Cumis Counsel Arbitration) 13 CA4 917 [See: CivC 2860; SDFCU v Cumis 162 CA3 358; Truck v Dynamic 9 CA4 1147]



------------



0178 Underinsured motorist coverage does not apply when insurance on the vehicle causing the damage has the same limit as insurance on the insured's vehicle, even though multiple claims cause the insured's recovery to be lower than that limit.



ROYAL INSURANCE v COLE (Underinsured Defined) 13 CA4 880 [See: InsC 11580.2]179



------------



0179 Court may summarily adjudicate claims in a complaint even though they are combined with other claims that cannot be summarily adjudicated.



LILIENTHAL v SUPERIOR COURT (Combined Causes of Action) 12 CA4 1848



------------



0180 Statutory exclusion (EvC 1106) of evidence of plaintiff's sexual history in cases based on contact that constitutes sexual harassment, sexual assault, or sexual battery does not apply to medical malpractice case based on alleged sexual contact between defendant and patient.



PATRICIA C v MARK D (Sexual History) 12 CA4 1211 [See: CivC 43.93; EvC 1106]



------------



0181 Statutory prohibition preventing discovery of information contained in police department personnel records applies even when information is sought from source other than personnel record.



HACKETT v SUPERIOR COURT (Police Personnel Records) 13 CA4 96 [See: PenC 832.7, 832.8; EvC 1043]



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--------------------

*(T/AT I,9 - 5/93)

--------------------

------------



0182 Police who impounded car because there was no licensed driver present did not owe minor passenger a duty of reasonable care to arrange for transportation.



HERNANDEZ v CITY OF SAN JOSE (Impounded Vehicle) 14 CA4 129



------------



0183 Attorney did not owe former client a duty of reasonable care after attorney-client relationship was terminated by client's substitution of another attorney.



STUART v SUPERIOR COURT (Substituted Atty's Failure To Serve) 14 CA4 124 [See: CCP 583.210]



------------



0184 In preparing financial reports for client to use for a variety of purposes, an auditor did not owe a duty of reasonable care to a plaintiff who relied on the report in agreeing to serve as client's surety, because the auditor did not have sufficient knowledge that the plaintiff would do so.



INDUSTRIAL v TOUCHE ROSS (Auditor's Liability) 13 CA4 1086 [See: Bily v Arthur Young 3 C4 370]



------------



0185 A student's riding of a horse that the student knew to be dangerous did not amount to a primary assumption of the risk in an action against the student's riding instructor, because the relationship between instructor and student imposed on the instructor a duty of reasonable care to the student.



TAN v GODDARD (A/R Jockey) 13 CA4 1528 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339]



------------



0186 Statutory immunity that protects landholders from tort liability to persons entering for recreational use applies even though the land is not suitable for recreational use.



ORNELAS v RANDOLPH (Recreational Land Use) 4 C4 1095 [See: CivC 846]



------------



0187 DEPUBLISHED Gun dealer's violation of statute prohibiting the sale of firearms to minors raises a presumption of negligence in an action against the dealer by a person shot by a minor to whose grandmother the dealer sold a firearm, if the dealer knew or should have known that the grandmother was purchasing the firearm as an agent for her minor grandson.



HOOSIER v RANDA (Gun To Grandma) 14 CA4 234 [See: PenC 12072(b)]



------------



0188 In a products liability action by a person who sustained liver damage as a result of exposure to a solvent, the adequacy of warnings stating that the product could cause respiratory and dermatological problems but not mentioning the possibility of liver damage was a question of fact.



SCHWOERER v UNION OIL (Solvent Warnings) 14 CA4 103



------------



0189 DEPUBLISHED A claim that defendant health care providers intentionally misrepresented plaintiff's condition for the purpose of inducing plaintiff to undergo expensive unnecessary surgical procedures is not a claim based on professional negligence.



KRIEGER v SUPERIOR COURT (Medical Fraud) 14 CA4 584 [See: CCP 425.13; Central Pathology v SuperCt 3 C4 181]



------------



0190 REVIEW GRANTED A claim that plaintiff was raped because defendant health care facility failed to provide adequate security is not based on the exercise of professional judgment and, therefore, is not a claim for professional negligence.



ANDREA N v LAURELWOOD (Rape Of Patient) 13 CA4 1492 [See: Gopaul v Herrick 38 CA3 1002; Murillo v Good Samaritan 99 CA3 50; CivC 3333.2(b)]



------------



0191 REVIEW GRANTED Plaintiff demonstrated a substantial probability of recovering punitive damages against a hospital by showing that she had been sexually victimized by a hospital department head, that she complained to the hospital administrator, and that the hospital administrator failed to investigate further.



COLLEGE HOSP v SUPERIOR COURT (Sex With Patient Puni's) 13 CA4 1193 [See: CCP 425.13; CivC 3294]



------------



0192 An employer is not vicariously liable for torts committed by an employee while commuting to or from the workplace.



ANDERSON v PG&E (Respondeat Superior Commute) 14 CA4 254



------------



0193 County is not vicariously liable for tort of attorney hired as an independent contractor and does not have burden of establishing that it acted reasonably in selecting the attorney.



FOSTER v COUNTY (County's Independent Contractor) 14 CA4 668 [See: GovC 815.4; 815.6]



------------



0194 After settling a negligence claim against a negligent driver and executing a document releasing the driver and "any corporation" charged with responsibility for the accident, a plaintiff who subsequently learned that the driver was acting within the scope of employment at the time of the accident was barred from asserting a vicarious liability claim against the driver's employer.



LAMA v COMCAST (Scope Of Release) 14 CA4 59 [See: CCP 877]



------------



0195 Children of decedent are "heirs" and may sue for wrongfully causing the death of decedent even though they did not inherit under decedent's will.



DESPLANCKE v WILSON (Disinherited Heirs) 14 CA4 631 [See: CCP 377; Fiske v Wilkie 67 CA2 440]



------------



0196 Unless insurance company employee allegedly terminated for refusing to inflate reserves can show that inflating reserves is specifically prohibited by statute, he may not maintain a tort action for termination in violation of public policy.



SEQUOIA v SUPERIOR COURT (Inflate Reserves) 13 CA4 1472 [See: Tameny v ARCO 27 C3 167; Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083]



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0197 Complaints in tort actions for bad faith denial of contract, interference with prospective business advantage, and unfair business practices should be dismissed unless they contain specific allegations of fact.



KHOURY v MALY'S (Particularity Of Pleading) 14 CA4 612



------------



0198 Bad faith denial of the existence of a contract and termination of employment in violation of public policy are torts, but bad faith breach of contract, bad faith assertion of a defense in a breach of contract action, and breach of contract (other than employment contract) in violation of public policy are not torts.



HARRIS v ARCO (Bad Faith Breach) 14 CA4 70 [See: Tameny v ARCO 27 C3 167; Seaman's v Standard Oil 36 C3 752]



------------



0199 DEPUBLISHED Privilege to make defamatory statements in the course of judicial proceedings does not apply to statements made prior to commencement of proceeding unless they were made in preparation for a proceeding to be used for a legitimate purpose.



TRENFEL v JASPER (Litigation Privilege) 13 CA4 1694 [See: CivC 47; Silberg v Anderson 50 C3 205; Rest (2d) Torts 586 comment e]



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0200 Statements made by attorney in soliciting clients are privileged even if solicitation was unethical; prospective defendant in litigation contemplated by attorney soliciting clients may not obtain an injunction against such solicitation on the ground that it is an unfair business practice.



RUBIN v GREEN (Privileged Solicitation) 4 C4 1187 [See: CivC 47(b); B&P 6152; 6153; 17204]



------------



0201 By bidding on a job, an unlicensed contractor does not tortiously interfere with prospective business advantage of a licensed contractor bidding on the same job.



SETTIMO v ENVIRON (Unlicensed Contractor) 14 CA4 842 [See: Buckaloo v Johnson 14 C3 815; B&P 7028]



------------



0202 Trial court does not have power to extend periods for filing claims against municipalities as specified by GovC.



CITY v SUPERIOR COURT (Late Filing / Late Petition) 14 CA4 621 [See: GovC 911; 946; 945]



------------



0203 If GovC section specifying time to sue government entity conflicts with CCP section establishing general statute of limitations, GovC section takes precedence.



SCHMIDT v SCRT (Conflict of Statutes) 14 CA4 23 [See: GovC 911.2; 945.6; CCP 340]



------------



0204 Attorney-client relationship terminates and tolling of statute of limitations on attorney malpractice action ceases when client retains new counsel.



HENSLEY v CAIETTI (Tolling of Atty Malpractice S/L) 13 CA4 1165 [See: CCP 340.6]



------------



0205 A policy that insures against risks in California should be interpreted according to California law even though it was issued in Wisconsin, and insurer should not be permitted to pay insured's punitive damages even though Wisconsin law permits insurers to pay insureds' punitive damages.



STONEWALL v JOHNSON (Puni's Coverage Conflict) 14 CA4 637 [See: Rest(2d)Conflicts 188(2), 193]



------------



0206 Although insurance may not cover insured for liability resulting from sexual molestation, molestation victim's claim for damages resulting from insured's kissing, hugging, and putting his arm around her may involve conduct sufficiently removed from sexual molestation to be covered by policy.



HORACE MANN v BARBARA B (Nonsexual Conduct) 4 C4 1076 [See: InsC 533; Gray v Zurich 65 C2 263; JC Penney v MK 52 C3 1009]



------------



0207 Under policy that covered insured for liability resulting from an "occurrence," insurer did not owe insured a defense against a suit for misrepresentation because "occurrence" means something unexpected, and even negligent misrepresentation involves the intent to induce reliance.



DYKSTRA v FOREMOST (Accidental Misrepresentation) 14 CA4 361



------------



0208 Uninsured motorist coverage that excluded damage to insured caused by other vehicles owned by insured but not insured by insurer did not cover insured for damage caused by uninsured motorcycle that insurer had purchased and then sold, but title to which insured had not yet transferred.



CAL STATE AUTO ASSN v FOSTER (Owner Of Motorcycle) 14 CA4 147 [See: VehC 460]



------------



0209 Provision in med pay policy requiring reimbursement to carrier of benefits received by insured if insured collected from third person was enforceable so long as it was conspicuous and unambiguous.



ZUBIA v FARMERS (Med Pay Reimbursement) 14 CA4 790



------------



0210 If general verdict rendered by jury is inconsistent with special interrogatories answered by jury, judgment should be based on answers to special interrogatories rather than general verdict.



TAVAGLIONE v BILLINGS (General Verdict Rule) 4 C4 1150 [See: CCP 625; McCloud v Roy Riegels 20 CA3 928]



------------



0211 Within 30 days following arbitration, a party may request a trial de novo, but may not withdraw the request after the end of the 30 day period.



MARRACINO v BRANDSTETTER (Withdrawal Of Request For Trial De Novo) 14 CA4 543 [See: CCP 1141.20; CaRulesofCt 1616(a)]



------------



0212 A plaintiff is entitled to discovery of the defendant's insurance policies even though s/he has already discovered information about the policies.



IRVINGTON-MOORE v SUPERIOR COURT (Discovery Of Policy) 14 CA4 733 [See: CCP 2017; 2019]



------------



0213 Plaintiff is not entitled to videotape a medical examination of plaintiff conducted by defendant's doctor.



RAMIREZ v MACADAM (Videotape Medical Exam) 13 CA4 1638 [See: CCP 2032; Edmiston v SuperCt 22 C3 699]



------------



0214 Findings made at a "good faith settlement" hearing do not bind non-participating, non-party insurance carriers, so court should not consider their rights in making determination.



PACIFIC ESTATES v SUPERIOR COURT (Good Faith Settlement) 13 CA4 1561 [See: CCP 877.6; Diamond Heights v National 227 CA3 563]



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--------------------

*(T/AT I,10 - 6/93)

--------------------

------------



0215 DEPUBLISHED Operator of housing project had no duty to control conduct of third persons loitering in the vicinity of the housing project in the absence of a special relationship between operator of project and plaintiff or third persons.



HOUSING AUTH v SUPERIOR COURT (Housing Project) 14 CA4 874



------------



0216 In the face of uncontroverted evidence that no blood bank performed "surrogate testing" for AIDS, trial court was correct in excluding expert testimony that reasonable care required such testing by defendant blood bank before supplying blood for transfusion.



WILSON v IRWIN (AIDS Transfusion) 14 CA4 1315



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0217 Since a landlord owes a tenant a duty of reasonable care, it cannot be concluded that tenant's encounter with a known risk on the premises was a primary assumption of the risk.



CURTIES v HILL TOP (A/R Lawn Flop) 14 CA4 1651 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339]



------------



0218 Since school districts owe students a duty of reasonable care to supervise their activities on school premises, it cannot be concluded that student's activity on school premises was a primary assumption of the risk.



LUCAS v FRESNO USD (A/R Schoolyard) 14 CA4 866 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339; EdC 44807; Taylor v Oakland 17 C2 594; Dailey v LA USD 2 C3 741; Cal C of Reg Title 5, section 5552]



------------



0219 Statutory immunity of arbitrators from liability for acts that are part of the arbitral process applies to the sponsoring organization [i.e., AAA]; publication of award is part of the arbitral process.



THIELE v RML (AAA Immunity) 14 CA4 1526 [See: CCP 1280.1; AAA v SuperCt 8 CA4 1131; Baar v Tigerman 140 CA3 979]



------------



0220 Statutory immunity of landowners from liability to persons using their land for recreational purpose without paying a consideration does not protect against liability to a person injured while attempting to rescue persons using the land for recreational purpose.



LOVING v TENNECO (Rescue of Firestarters) 14 CA4 1272 [See: CivC 846]



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0221 Unless an employer's performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior it cannot support a cause of action for libel; an evaluation of an employee made by an employer acting in bad faith is a breach of the covenant of good faith and fair dealing for which breach of contract is the exclusive remedy.



JENSEN v H-P (Defamatory Evaluation) 14 CA4 958 [See: Foley v Interactive 47 C3 654]



------------



0222 REVIEW GRANTED In a wrongful termination case, the trial court is in a better position to assess damages than the appellate court, and should be presumed correct; court suggests legislative reform to control "runaway" verdicts in wrongful termination cases.



HUNIO v TISHMAN (WT Reform Suggested) 14 CA4 1010



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0223 A verdict based on an advance agreement by jurors to accept as their verdict the average of all numbers written secretly by jurors on slips of paper is invalid; a jury verdict can be impeached by evidence of jurors' acts, but not by evidence of jurors' reasoning process.



CHRONAKIS v WINDSOR (Quotient Verdict) 14 CA4 1058 [See: CCP 657.2; Dixon v Pluns 98 C 384; EvC 1150(a)]



------------



0224 Statutory bar to claims for contribution and indemnity following determination that settlement was made in good faith applied even though settlement was reached after completion of the liability phase of a bifurcated trial.



PRICE PFISTER v WILLIAM LYON (Bifurcated Trial Settlement) 14 CA4 1643 [See: CCP 877, 877.6]



------------



0225 DEPUBLISHED After plaintiff's employer's workers' compensation carrier allegedly prevented plaintiff from obtaining evidence needed in the prosecution of a lawsuit against the third party who caused plaintiff's work-related injury, plaintiff's spoliation of evidence claim against the carrier was work-related, making workers' compensation the exclusive remedy.



ERNST v FIREMAN'S (WC Spoliation) 14 CA4 930 [See: LabC 3600, 3602, 3850; Continental v SuperCt 190 CA3 156; Coca-Cola v SuperCt 233 CA3 1273]



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0226 Insurance coverage against liability for sexual harassment is prohibited by statute because sexual harassment is a willful act; acts of a high corporate official are acts of the corporation, so a claim that the corporation is liable for negligently failing to supervise the official is a claim that it failed to supervise itself and, therefore, invalid.



COIT v SEQUOIA (Sexual Harassment Coverage) 14 CA4 1595 [See: InsC 533; JC Penney v MK 52 C3 1009; Horace Mann v Barbara B 4 C4 1076]



------------



0227 A primary automobile liability policy can not exclude coverage for accidents that occur while the vehicle is driven under the influence of alcohol, making language purporting to create such an exclusion unenforceable, but not invalidating the policy; excess coverage policies may exclude such liability.



HERTZ v HOME (Intoxication Exclusion) 14 CA4 1071 [See: InsC 11580.1]



------------



0228 After policy was re-issued to sole insured, insured continued to be bound by a coverage waiver previously executed by a co-insured.



CRAFT v STATE FARM (UM Waiver) 14 CA4 1284 [See: InsC 11580.2]



------------



0229 Statutory power of court to prohibit vexatious litigants from instituting litigation in pro per without court's prior approval does not extend to institution of small claims proceedings.



BANKS v STATE (Vexatious Small Claims) 14 CA4 1147 [See: CCP 391.7]



------------



0230 A federal statute that prohibits ship passage contracts from shortening the period during which personal injury claims can be asserted extends to prohibit shortening of the period during which process in such claims can be served.



HAYMAN v DAWN PRINCESS (S/L Cruise) 14 CA4 1499 [See: 46 USC Appx 183b & c; CCP 583.210]



------------



0231 A trial court is in a better position than an appellate court to determine whether a delay in prosecution is excusable and is not required to base its determination on the credibility and reasonableness of the excuse presented.



ROACH v LEWIS (Lack Of Prosecution) 14 CA4 1179 [See: CCP 583.420; Putnam v Clague 3 CA4 542; Yao v Anaheim 10 CA4 1024]



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--------------------

*(T/AT I,11 - 7/93)

--------------------

------------



0232 Even without knowledge that the animal has an abnormally dangerous propensity, the keeper of a dog owes a duty of reasonable care in keeping and controlling it.



DRAKE v DEAN (Dog Negligence) 15 CA4 915.



------------



0233 A real estate broker owes a prospective buyer the duty of making a reasonably diligent visual inspection of the premises and informing the buyer of any defects that such an inspection would reveal.



WILSON v CENTURY 21 (Defective Foundation) 15 CA4 298 [See: CivC 2079; Easton v Strassburger 152 CA3 90]



------------



0234 A person who furnishes alcohol to an obviously intoxicated minor may be liable to a person subsequently injured by the intoxicated minor; a minor is obviously intoxicated if there are objective signs of intoxication that would be recognized by the reasonable person observing the minor.



SCHAFFIELD v ABBOUD (Obvious Intoxication) 15 CA4 1133 [See: B&P 25602; People v Johnson 81 CA2 Supp 973]



------------



0235 DEPUBLISHED A plaintiff participating in a sporting activity is barred by the doctrine of primary assumption of the risk from recovering for damage resulting from risks inherent in the sport, but not from hidden, inordinate risks.



HANDELMAN v MAMMOTH (A/R Ski Slope) 15 CA4 820 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339]



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0236 REVIEW GRANTED A defendant who negligently starts a fire owes no duty of reasonable care to a professional firefighter attempting to extinguish the fire, and the firefighter's claim against the defendant is therefore barred by primary assumption of the risk.



NEIGHBARGER v IRWIN (A/R Firefighter's Rule) 14 CA4 1721 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339]



------------



0237 REVIEW DENIED The doctrine of primary assumption of the risk can be applied to a products liability action brought on theories of strict liability or breach of warranty.



MILWAUKEE ELECTRIC TOOL v SUPERIOR COURT (A/R Strict Liability) 15 CA4 547 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339]



------------



0238 A stipulation of settlement signed by the attorney for a party is enforceable against the party.



DIAZ v MAY (Atty's Signature) 15 CA4 1268 [See: CCP 664.6; Haldeman v Boise Cascade 176 CA3 230; Gallo v Getz 205 CA3 329; Nicholson v Barab 233 CA3 1671]



------------



0239 A client is actually injured by an attorney's malpractice when the malpractice results in an adverse ruling, even though an appeal is taken from the ruling; a client's time-barred malpractice claim against an attorney can be asserted as a set off in the attorney's action against the client for a fee.



SAFINE v SINNOTT (Excess Judgment) 15 CA4 614 [See: CCP 340.6, 431.70; Laird v Blacker 2 C4 606]



------------



0240 A broadcast including likenesses of the plaintiff participating in surfing, a sport in which the plaintiff was an important figure and which had a profound effect on popular culture, is in the public interest and therefore privileged against liability for invasion of privacy.



DORA v FRONTLINE VIDEO (Shy Surfer) 15 CA4 536 [See: CivC 3344]



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0241 In an action for trespass to land based upon the defendant's unauthorized use of the plaintiff's mineral estate for the disposal of wastewater, a proper measure of damages is the fair market value of the disposal rights taken by defendant, and since these can be calculated with reasonable certainty, the defendant may be liable for pre-judgment interest.



CASSINOS v UNION OIL (Injection of Wastewater) 14 CA4 1770 [See: CC 3287(a), 3334]



------------



0242 REVIEW GRANTED Interrogating an employee about the possible theft of sales proceeds is a normal part of the employment relationship even if the employer's conduct is characterized as "intentional, egregious, unfair, outrageous, or harassment," and therefore workers' compensation is the employee's exclusive remedy for false imprisonment.



FERMINO v FEDCO (WC False Imprisonment) 15 CA4 29 [See: LabC 3600, 3602; Shoemaker v Myers 52 C3 1]



------------

0243 A claimant can not sue an insurer directly for payment of a judgment rendered against its insured until a pending appeal from the judgment is decided or the time to appeal expires.



McKEE v NATIONAL UNION (Final Judgment) 15 CA4 282 [See: InsC 11580(b)(2); CCP 1049]



------------



0244 DEPUBLISHED A liability policy issued to a contractor and containing language specifically excluding coverage for damage to property on which the contractor was hired to work does not cover damage to that property even if it results from negligence or faulty workmanship by the contractor.



PJ v UNIGARD (Subject Property Exclusion) 14 CA4 1748 [See: InsC 11580]



------------



0245 Underinsured motorist coverage does not apply unless the tortfeasor's automobile liability policy has a lower limit than the claimant's uninsured motorist coverage, regardless of how much of the tortfeasor's limit is available to compensate the claimant.



LOPEZ v ALLSTATE (Underinsured Motorist Limits) 14 CA4 1835 [See: InsC 11580.2(p)(2); Royal v Cole 13 CA4 880; State Farm v Messinger 232 CA3 508; Schwieterman v Mercury 229 CA3 1044]



------------



0246 Proof of serious jury misconduct raises a presumption of prejudice, and unless the presumption is rebutted by the respondent, requires reversal of an order denying a motion to vacate the verdict.



LANKSTER v ALPHA BETA (Turnstile Misconduct) 15 CA4 678 [See: Hasson v Ford 32 C3 388]



------------



0247 A party's failure to negotiate in good faith justifies the imposition of sanctions, but depriving a party of its day in court, as by striking its request for trial de novo, is not justified unless lesser sanctions have been found to be ineffective.



SIGALA v ANAHEIM (Ultimate Sanction) 15 CA4 661 [See: CA R of C 222, 227; GovC 68609(d)]



------------



0248 Unless they are imposed for the same act, separate monetary sanctions under $750 may not be aggregated to result in a total in excess of $750 for the purpose of making appealable the orders imposing them.



CHAMPION v E-Z SERVE (Aggregate Sanctions) 15 CA4 56 [See: CCP 904.1; Greene v Amante 3 CA4 684]



------------



0249 When a previously instituted action in a federal court in CA covers the same subject matter as a proceeding in a CA state court, the CA court should attempt to avoid unseemly conflicts by staying the state proceeding until the federal action has been decided.



CAIAFA v STATE FARM (Quickshots) 15 CA4 80.



------------



0250 RICO action in state court against Federal S&L is not pre-empted by federal statutes.



PEOPLE v HIGHLAND FEDERAL S&L (Quickshots) 14 CA4 1692.



------------



0251 No default can be taken in Municipal Court unless the complaint specifies the amount of damages demanded.



PINO v CAMPO (Quickshots) 15 CA4 Supp 1.



------------



0252 REHEARING GRANTED (SEE #0308) Health plan provision giving provider the right to reimbursement from proceeds of third party claim is valid, even though it may result in inadequate compensation to accident victim.



SAMURA v KAISER (Quickshots) 15 CA4 245.



------------



0253 In determining whether a party is a vexatious litigant because he maintained 5 groundless actions in pro per in the past seven years, the court is collaterally estopped from reconsidering a decision made in a previous determination based on the same 5 actions.



STOLZ v BANK OF AMERICA (Quickshots) 15 CA4 217.



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--------------------

*(T/AT I,12 - 8/93)

--------------------

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0254 A social acquaintance who introduced plaintiff to an investment counselor did not owe plaintiff a duty to investigate or advise plaintiff regarding the competency of the counselor or the soundness of investments plaintiff made through the counselor.



VIOLETTE v SHOUP (Non-Agent's Duty) 16 CA4 611.



------------



0255 An attorney retained to handle a client's WC claim has an obligation to advise the client about possible tort actions against third parties.



NICHOLS v KELLER (Limited Advice) 15 CA4 1672.



------------



0256 Farmer owed migrant farm workers no duty of reasonable care regarding premises on which they camped which was adjacent to his farm, but not owned, possessed, or controlled by him.



LUCAS v GEORGE MURAI FARMS (Cancha) 15 CA4 1578 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339]



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0257 While being trained to participate in the sport of horse-jumping, plaintiff was not actually participating in the sport and, since her instructor owed her a duty of reasonable care, her negligence action against the instructor was not barred by primary assumption of the risk, but plaintiff's voluntary encounter with the risk might have been a secondary assumption of the risk for the jury to consider as part of its comparative fault analysis in apportioning liability.



GALARDI v SEAHORSE (A/R Horse Jumping) 16 CA4 817 [See: Knight v Jewett 3 C4 296]



------------



0258 A firefighter injured by a dangerous condition of defendant's premises while making a surprise safety inspection was not barred from recovery by the doctrine of primary assumption of the risk or the firefighter's rule, but his voluntary encounter with the dangerous condition might have been a secondary assumption of the risk for the jury to consider as part of its comparative fault analysis in apportioning liability.



DONOHUE v SFHA (Fire Inspection) 16 CA4 658 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339]



------------



0259 The doctrine of primary assumption of the risk or the firefighter's rule bars recovery in a negligence claim by a veterinarian against the owner of a dog that bit the veterinarian during veterinary treatment.



COHEN v MCINTYRE (Dog Bites Vet) 16 CA4 650 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339; Nelson v Hall 165 CA3 709; CivC 3342]



------------



0260 In a products liability claim, a defendant who raises the defense of "misuse" must prove that plaintiff's misuse of the product was a cause of plaintiff's injury, and, if the misuse was foreseeable, must also prove that the product was accompanied by an adequate warning against the misuse that resulted in harm.



HUYNH v INGERSOLL-RAND (Grinder) 16 CA4 825.



------------



0261 REVIEW GRANTED A plaintiff who had been sued on several theories in a prior action may maintain an action for malicious prosecution of the prior action even though there was probable cause for one of the theories asserted in the prior action.



CROWLEY v KATLEMAN (Alternate Theory) 16 CA4 1 [See: Bertero v National 13 C3 43]



------------



0262 If an insurance agent makes an unequivocal statement misrepresenting the extent of a policy's coverage, the insured is justified in relying on the agent's misrepresentation without independently investigating the extent of coverage.



CLEMENT v SMITH (Coverage Advice) 16 CA4 39 [See: InsC 533]



------------



0263 Damages for misrepresentation should be measured by the difference between what the plaintiff paid and the value of what s/he received (i.e., out of pocket). Punitive damages should not be awarded without some evidence of the defendant's net worth.



KENLY v UKEGAWA (Farm Fraud) 16 CA4 49 [See: Civ C 3343; Cummings v Occupational 10 CA4 1291]



------------



0264 In a claim by a plaintiff against a religious organization in which the plaintiff seeks punitive damages, the statutory requirement of a motion to amend the complaint based on a showing that there is a substantial likelihood of success should be interpreted to mean only that the plaintiff must prove to the court that there is enough evidence to get the claim for punitive damages to a jury, and, so interpreted, is constitutional.



ROWE v SUPERIOR COURT (Religious Puni's) 15 CA4 1711 [See: CivC 3343; CCP 425.14]



------------



0265 Where necessary to protect a plaintiff's right to a preferential trial date courts should recognize an implied exception to statutory time limits on a motion to amend a complaint for medical malpractice to include a punitive damages claim, so long as defendant has had sufficient notice and opportunity for discovery.



LOONEY v SUPERIOR COURT (AIDS Quackery) 16 CA4 521 [See: CCP 36, 425.13; Bommareddy v SuperCt 222 CA3 1017; Central Pathology v SuperCt 3 C4 181; Krieger v SuperCt 14 CA4 584]



------------



0266 REVIEW GRANTED Provisions of MICRA do not apply to a plaintiff suing a health care provider for equitable indemnity as a result of payments that federal law required the plaintiff to make to an employee who was a victim of medical malpractice.



WESTERN v SAN PEDRO PENINSULA HOSPITAL (Cruise Ship MICRA) 15 CA4 1655 [See: CivC 3333; CCP 667.7]



------------



0267 Damages for negligently inflicted emotional distress ordinarily are not recoverable in an action for attorney malpractice.



PLEASANT v CELLI (Malpractice Distress) 16 CA4 675 [See: Molien v Kaiser 27 C3 916; Holliday v Jones 215 CA3 102; Smith v SuperCt 10 CA4 1033]



------------



0268 A plaintiff attacked on defendant's premises who proves that defendant maintained inadequate security must also prove that greater security measures would have prevented the attack.



NOLA M v USC (Campus Rape) 16 CA4 421.



------------



0269 A school district may be vicariously liable for the negligence of employees in failing to properly screen applicants before hiring them.



VIRGINIA v ABC UNIFIED SCHOOL DISTRICT (Molesting Teacher) 15 CA4 1848 [See: GovC 815, 820; Leger v Stockton USD 202 CA3 1448]



------------



0270 Although there is no statutory basis for a public entity to be liable for negligence in placing a child in an adoptive home, the public entity might be vicariously liable for the negligence of its employees in doing so, but since placing a child in an adoptive home involves "basic policy choices," public employees are immune from such liability, and vicarious liability for their acts may not be imposed on the public entity that employs them.



RONALD v COUNTY (Adoption) 16 CA4 887 [See: GovC 815, 820, 818.2; Johnson v State 69 C2 782]



------------



0271 REHEARING GRANTED A public entity is immune from liability for dangerous conditions of trails used for certain recreational purposes.



GIANNUZZI v STATE (Access Trail) 15 CA4 1367 [See: GovC 831.4, 835]



------------



0272 "Products hazard" coverage in an insurance policy applies to liability for damage resulting from the condition of the insured's products, even though actions against the insured are characterized as "concert of action," "market share liability," "civil conspiracy," or "failure to disclose the presence of toxic substances."



FIBREBOARD v HARTFORD (Products Hazard) 16 CA4 492.



------------



0273 Attorney malpractice that exposed a client to suit caused actual injury when client began incurring fees to defend the suit, even though the fees were paid by insurance.



KOVACEVICH v MCKINNEY (Actual Injury) 16 CA4 337 [See CCP 340.6; Laird v Blacker 2 C4 606]



------------



0274 In determining whether plaintiff received a judgment more favorable than the settlement offer that defendant had rejected, the amount of a WC lien should not be deducted until after judgment was entered.



MANTHEY v SAN LUIS REY (Before Or After) 16 CA4 782 [See: CCP 998]



------------



0275 Sanctions imposed for discovery abuse are not appealable until after entry of final judgment.



HANNA v BANKAMERICA (Discovery Sanctions) 16 CA4 913 [See: CCP 904.1(k); Kohan v Cohan 229 CA3 967; Greene v Amante 3 CA4 684; Russell v GM 3 CA4 1114; Ghanooni v Super Shuttle 2 CA4 380; Rao v Campo 233 CA3 1557; Champion v E-Z Serve 15 CA4 56]



------------



0276 Party's failure to move to augment expert witness list after granting of adversary's in limine motion to exclude testimony of unlisted expert precluded appeal from final judgment on the ground that the expert's testimony was excluded.



RICHAUD v JENNINGS (Unlisted Witness) 16 CA4 81 [See: CCP 2034]



------------



0277 A party who offered but never delivered to her adversary a copy of a videotaped conversation between herself and her lawyer thereby waived the attorney-client privilege as to the contents of the conversation.



HIOTT v SUPERIOR COURT (Video Waiver) 16 CA4 712 [See: EvC 912, 954]



------------



0278 Connecticut residents who sent their 17 year old son to college in CA had sufficient contact with the state to be subject to in personam jurisdiction of the CA court in action against them for damage done by their son.



JAMSHID v KESSLER (Minimum Contacts) 15 CA4 1704 [See: CCP 410.10; CivC 1714.1; Internat. Shoe v Washington 326 US 310; Quattrone v SuperCt 44 CA3 296]



------------



0279 Settlement demands and attorney's oral statement of estimated value did not satisfy statutory requirement that plaintiff notify defendant of damages sought.

DEBBIE v RAY (Ad Damnum) 16 CA4 193 [See: CCP 425.10, 425.11]



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--------------------

*(T/AT II,1 - 9/93)

--------------------

------------



0280 REVIEW GRANTED A professional tree trimmer electrocuted while trimming a tree owned by defendant #1 by coming into contact with high voltage wires operated by defendant #2 was barred from recovering against either defendant by the doctrine of primary assumption of the risk and the firefighter's rule.



HACKER v CITY OF GLENDALE (A/R Tree Trimmer) 16 CA4 1419 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339; Donohue v SFHA 16 CA4 658]



------------



0281 Although plaintiff was aware that defendant had sprinkled Ivory Snow Flakes on a dance floor to make it slippery, her recovery was not barred by the doctrine of primary assumption of the risk because falling on a slippery floor is not one of the inherent risks of dancing.



BUSH v PARENTS WITHOUT PARTNERS (A/R Slippery Dancing) 17 CA4 322 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339; Handelman v Mammoth 15 CA4 820]



------------



0282 Whether the possibility that plaintiff would be struck by an errant vehicle while standing on the shoulder of a highway after his truck broke down was a foreseeable risk of defendant's failure to repair the truck properly was a triable issue of fact.



JACKSON v RYDER (Electrical Problems) 16 CA4 1830



------------



0283 A public entity can be liable for creating a condition of public property that increased the plaintiff's risk of being injured through the negligence of a third person.



CONSTANTINESCU v CONEJO (Chaotic Lot) 16 CA4 1466 [See: GovC 830, 835]



------------



0284 Health and Safety Code 1799.110, which sets the qualifications required for expert testimony in a malpractice action against a physician furnishing "emergency medical coverage" applies to a physician working in a hospital emergency room, whether or not the service rendered was emergency medical service.



ZAVALA v STANFORD (ER Expert) 16 CA4 1755 [See: H&S 1799.110; Jutzi v County 196 CA3 637]



------------



0285 A defendant's statement of present intent was not a false assertion of fact so long as defendant actually had the intent that he said he had when he made the statement; a plaintiff was not justified in relying on the defendant's statement about his present intent with respect to future conduct.



EDMUNDS v VALLEY CIRCLE (No Sale) 16 CA4 1290



------------



0286 Without evidence that defendant surgeon's failure to perform promised surgery violated the professional standard, plaintiff was not entitled to recover damages for emotional distress resulting from defendant's failure to operate on her.



SELDEN v DINNER (Non-Reconstruction) 17 CA4 166 [See: Dillon v Legg 68 C2 728; Molien v Kaiser 27 C3 916]



------------



0287 During trial of plaintiff's negligence case against non-settling defendant, the jury should have been given an opportunity to satisfy the requirements of Proposition 51 by apportioning the fault of settling defendants who were not present at the trial because of plaintiff's consent to dismiss the case against them as a condition of the settlement.



ROSLAN v PERMEA (Missing Defendants) 17 CA4 110 [See: CivC 1431.2 (Prop 51); Everman v SuperCt 8 CA4 466]



------------



0288 A judgment against a negligent driver in excess of the owner's statutory vicarious liability does not discharge the owner until the judgment is satisfied to the extent of the owner's statutory liability.



WALKER v BELVEDERE (Permissive User) 16 CA4 1663 [See: VehC 17150, 17151; Rashtian v BRAC-BH 9 CA4 1847]



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0289 In comparing the award received by a plaintiff after trial de novo with the award received at the previous arbitration hearing for the purpose of determining which was more favorable, the court should consider the amounts awarded prior to deducting liens.



CRAMPTON v TAKEGOSHI (Common Fund) 17 CA4 308 [See: Engle v Endlich 9 CA4 1152; LabC 3600, 3852, 3856; CCP 1141]



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0290 Even though the statute of limitations on latent construction defects is three or four years from the time of discovery, plaintiff has no more than ten years to commence action regardless of when discovery occurs.



NORTH COAST v NIELSEN (Crib Wall) 17 CA4 22 [See: CCP 337.15, 338]



------------



0291 Although CCP 337.15 prevents certain parties from asserting the statute of limitations as a defense in an action for construction defects, an action filed after the period of limitations expires is not "timely."



GRANGE v SUPERIOR COURT (Contamination Indemnity) 16 CA4 1349 [See: CCP 337.15]



------------



0292 Conduct by a defendant that had the effect of tolling the running of the statute of limitations for breach of contract also tolled the statute in plaintiff's action for NIED resulting from the same conduct; in an action for property damage, the collateral sources rule prevents consideration of funds received from plaintiff under plaintiff's own insurance policy; comparative negligence is not a defense in an action for breach of express warranty, but plaintiff's failure to mitigate damages by acting reasonably is; joint venturers are vicariously liable for each other's torts; property damage is measured by the reasonable cost of repair or diminution in value, which ever is least.



SHAFFER v DEBBAS (Custom Defects) 17 CA4 33



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0293 REVIEW GRANTED The litigation privilege under CivC 47.2 provides immunity for disclosures that affect plaintiff's litigation but not for non-communicative acts that injure plaintiff without regard to the effect on plaintiff's litigation, such as invasion of the Constitutional right of privacy or violation of the Confidentiality of Medical Information Act.



HELLER v NORCAL (Conspiratorial Disclosure) 17 CA4 127 [See: CivC 47, 56; CaConst I,1]



------------



0294 Statements of opinion are immune from defamation liability.



JAMES v SAN JOSE MERCURY NEWS (Libeled Lawyer) 17 CA4 1 [See: Milkovich v Lorain 497 US 1]



------------



0295 A contractor's employee injured by the negligence of the contractor may not collect tort damages under the peculiar risk doctrine from the landholder who hired the contractor.



PRIVETTE v SUPERIOR COURT (Peculiar Risk vs WC) 5 C4 689 [See: LabC 3600 etseq; Woolen v Aerojet 57 C2 407]



------------



0296 The prevailing party in an action for misrepresentation in the inducement of a contract is entitled to attorney fees under a clause of the contract providing for attorney fees in any action "arising from the contract."



PALMER v SHAWBACK (Attorney Fees Clause) 17 CA4 296 [See: CCP 1021, 1717; Lerner v Ward 13 CA4 155; Xuereb v Marcus 3 CA4 1338]



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0297 A release from potential liability signed prior to taking a swimming class did not violate the public interest and was, therefore, valid, even though the person who signed it did not read it and was not literate in English.



RANDAS v YMCA (Swimming Release) 17 CA4 158 [See: CivC 1668; Tunkl v Regents 60 C2 92; Gardner v Downtown 180 CA3 713; Buchan v US Cycling 227 CA3 134]



------------



0298 In the absence of an agreement to the contrary, parties to arbitration bear their own costs.



AUSTIN v ALLSTATE (Arbitration Costs) 16 CA4 1812 [See: CCP 1284.2, 1293.2; InsC 11580.2]



------------



0299 Misconduct by an arbitrator that delays the scheduling of an arbitration hearing does not toll the 5 year period during which an arbitration matter must be brought to hearing to avoid dismissal.



BURGESS v KAISER (Arbitration Tolling) 16 CA4 1077 [See: CCP 583.310, 583.340]



------------



0300 The GovC does not make the State Compensation Insurance Fund immune from tort liability.



MAXON v SCIF (SCIF Tort Liability) 16 CA4 1387 [See: InsC 11873(a); Courtesy v SuperCt 8 CA4 1504; GovC 810 etseq]



------------



0301 An employer who manufactures the tools that an employee is employed to operate thereby enters into an "extra-employment" relationship with the employee, and may not be immune from tort liability under the workers' compensation Act for injuries resulting from defects in the tools.



FLOWMASTER v SUPERIOR COURT (Power Press) 16 Ca4 1019 [See: LabC 3600 etseq, 4558]



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0302 Workers' compensation is not the exclusive remedy for sexual harassment or mental distress resulting from sexual harassment.



ACCARDI v SUPERIOR COURT (Harassed Cop) 17 CA4 341 [See: GovC 12960 etseq (FEHA); LabC 3600 etseq; Shoemaker v Myers 52 C3 1]



------------



0303 REVIEW GRANTED Termination in violation of the FEHA is a violation of public policy for which FEHA does not provide the exclusive remedy.



JENNINGS v MARRALLE (FEHA Exclusive) 17 CA4 177 [See: GovC; 12920 (FEHA); Gantt v Sentry 1 C4 1083; Sequoia v SuperCt 13 CA4 1472]



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0304 A policy exclusion for injuries "arising out of the ownership, maintenance, operation, use of any automobile owned or operated by insured" prevents the carrier from being liable unless the injury resulted from two unrelated causes, one of which was independent of "ownership, maintenance, operation or use" of an automobile and would have rendered the insured liable without the other.



GURROLA v GREAT SOUTHWEST (Welded Chassis) 17 CA4 65 [See: State Farm v Partridge 10 C3 94; State Farm v Camara 63 CA3 48; Gonzalez v St Paul 60 CA3 675]



------------



0305 A policy exclusion for any car "being . . . used in any . . . business or occupation" relieved the carrier of liability for injuries caused by the negligence of the insured's employee while driving a rented truck in the insured's business.



RAMIREZ v STATE FARM (Business Exclusion) 16 CA4 1782 [See: CivC 1636]



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--------------------

*(T/AT II,2 - 10/93)

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------------



0306 REVIEW GRANTED Plaintiff may assert a battery claim against a surgeon who operated in violation of a condition of plaintiff's consent and may recover for fear of AIDS experienced during a "reasonable window of anxiety."



KERINS v HARTLEY (AIDS Phobia) 17 CA4 713 [See: Cobbs v Grant 8 C3 229; Ashcraft v King 228 CA3 604; Grieves v SuperCt 157 CA3 159; Faya v Almaraz 329 Md 435; Akins v Sacramento 6 CA4 1605 rev.grtd; Potter v Firestone 225 CA4 213 rev.grtd]



------------



0307 After recovering damages for cost to repair realty damaged by defendant's negligence, plaintiff is not entitled to recover for decline in value of property resulting from changes in real estate market that occurred while property was being repaired.



SAFECO v J & D (Decline in Value) 17 CA4 1199



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0308 Health plan provisions requiring reimbursement from proceeds of third party action are valid, but enforcement might be unconscionable if patient does not receive full compensation from third party or if health care provider does not bear a fair share of patient's litigation expenses.



SAMURA v KAISER (Health Plan Reimbursement) 17 CA4 1284



------------



0309 Evidence of bad faith by an insurance company does not establish malice sufficient to support an award of punitive damages.



STEWART v TRUCK INSURANCE EXCHANGE (Bad Injection) 17 CA4 468 [See: CCP 657; Royal Globe v SuperCt 23 C3 880; Moradi-Shalal v Firemans's 46 C3 287]



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0310 Unless an arbitration agreement specifically excludes the possibility of liability for punitive damages, the court should not disturb an arbitrator's award of punitive damages.



ALEXANDER v MENDEZ (Arbitration Puni's) 17 CA4 1083 [See: CCP 1286.2; 1286.6; Moncharsh v Heily 3 C4 1]



------------



0311 An agreement to arbitrate existing medical malpractice claims is valid so long as it complies with the requirements of CCP 1295 concerning form and content.



COON v NICOLA (Overlooked Fracture) 17 CA4 1225 [See: CCP 1295, 1281]



------------



0312 Item appearing in "April Fool's" section of defendant newspaper could not be the basis of defamation liability because the average reader would not have believed that it asserted any fact about plaintiff.



SAN FRANCISCO BAY GUARDIAN v SUPERIOR COURT (April Fool) 17 CA4 655 [See: Baker v LA Herald 42 C3 254; Polygram v SuperCt 170 CA3 543]



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0313 DEPUBLISHED The litigation privilege does not protect against defamation liability statements contained in court documents not required or permitted by law; the interested persons privilege does not protect statements made with malice.



KOENIG v FOOTE (Unresponsive Declarations) 17 CA4 1007 [See: Silberg v Anderson 50 C3 205; CivC 47; CCP 2030(j)]



------------



0314 Termination from employment in retaliation for informing employer that it was violating federal law violates public policy and is, therefore, a tort; an action for wrongful termination is not an action for personal injury under offer of compromise provisions of CCP 998 and CivC 3291.



HOLMES v GENERAL DYNAMICS (False Statements Act) 17 CA4 1418 [See: 18 USC 1001; Foley v Interactive 47 C3 654; CivC 3291; Bihun v AT&T 13 CA4 976]



------------



0315 An oral employment agreement for a period in excess of one year does not violate the Statute of Frauds if either party has any right to terminate the agreement during the first year.



ABEYTA v SUPERIOR COURT (Oral Employment K) 17 CA4 1037 [See: CivC 1624; Foley v Interactive 47 C3 654]



------------



0316 Implied covenant of good faith and fair dealing requires SCIF to handle WC claims against its insured with a good faith regard for the resulting effects on the insured's premiums and dividends; violation of the covenant is a breach of contract and a tort; SCIF is not immune from tort liability or liability for punitive damages.



SECURITY v SCIF (SCIF Good Faith) 17 CA4 887 [See: Courtesy v SuperCt 8 CA4 1504; Maxon v SCIF 16 CA4 1387; Foley v Interactive 47 C3 654]



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0317 REVIEW GRANTED After sexually molesting the plaintiff, defendant's attempts to communicate with her to inhibit his criminal prosecution were inseparably intertwined with the molestation and, therefore, wilful acts for which no liability insurance coverage can be available.



FIRE v SUPERIOR COURT (Molestation Communication) 7 CA4 901 [See: InsC 533; JC Penney v MK 52 C3 1009; Horace Mann v Barbara B 4 C4 1076]



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0318 Plaintiff's malpractice action based on attorney's two separate acts of negligence in attempting to collect a debt on behalf of the plaintiff was a "single claim" under the attorney's malpractice policy.



BAY CITIES v LAWYERS' MUTUAL (Single Claim) 5 C4 854



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0319 In an insurance policy that defines "sudden" as "not continuous or repeated," the word "sudden" is not ambiguous and does not apply to leakage that continued for 60 days.



TRUCK INSURANCE v POZZUOLI (Continuous Leakage) 17 CA4 856 [See: AIU v SuperCt 51 C3 807; Shell v Winterthur 12 CA4 715]



------------



0320 The phrases "latent defect" and "inherent vice" in a broad peril homeowner's insurance policy refer to flaws in the materials used in construction or flaws not discoverable by any known and customary test; whether inspection by an expert is a known and customary test is a triable issue of fact.



CHADWICK v FIRE INSURANCE EXCHANGE (Inherent Vice) 17 CA4 1112



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0321 An insurer's Underinsured Motorist liability is limited to the difference between the underinsured motorist's coverage and the Underinsured Motorist policy limit.



VIKING INSURANCE v STATE FARM (Narrow Coverage) 17 CA4 540 [See: InsC 11580.2]



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0322 DEPUBLISHED Evidence that a rejection of claim was mailed by a public entity is circumstantial evidence that it was received by the claimant's attorney, but evidence that it was not received by the claimant's attorney is circumstantial evidence that it was not mailed by the public entity; so conflicting evidence of its mailing and non-receipt raises a triable issue of fact as to when the statutory period of limitations expired.



HARRIS v SCRTD (Rejection's In The Mail) 17 CA4 1638 [See: GovC 910, 912, 912, 945]



------------



0323 DEPUBLISHED For purposes of the five year dismissal statute, filing of amended complaint including an added plaintiff relates back to the date the initial complaint was filed.



CASSEL v DAY-NITE (Added Plaintiff) 17 CA4 1019 [See: Nassif v MuniCt 214 CA3 1294; Gray v Firthe 194 CA3 202]



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0324 Absent a showing of prejudice, a party should not be deprived of a jury trial for posting the jury fee a few days after the deadline for doing so.



JOHNSON-STOVALL v SUPERIOR COURT (Cheerleader Attitudes) 17 CA4 808 [See: Est of Meeker 13 CA4 1099]



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--------------------

*(T/AT II,3 - 11/93)

--------------------

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0325 DEPUBLISHED Penal Code section 466.6 requiring maker of motor vehicle ignition key to obtain identifying information about the person requesting the key imposes on keymaker a duty to a potential passenger in the motor vehicle for which the key is made, and keymaker may owe duty to such person under the general law of negligence.



WAGNER v ARCHER SALES (Hot Scooter) 18 CA4 751 [See: PenC 466.6; EvC 669]



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0326 No rule of law specifically requires physician to give patient life expectancy information; physician is required to inform patient of all information that physician knows or should know would be important to the reasonable person in patient's position; expert testimony may be admitted to establish what this includes; physician has no duty to protect patient against financial losses resulting from financial decisions made by patient based on information given by physician.



ARATO v AVEDON (Life Expectancy) 5 C4 1172 [See: Cobbs v Grant 8 C3 229; Truman v Thomas 27 C3 285; Moore v Regents 51 C3 120]



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0327 Firefighter's rule prevents recovery by police officer unless, after learning of officer's presence, defendant performs some new kind of injury-producing conduct.



SEIBERT v SUPERIOR COURT (Impatient Patient) 18 CA4 394 [See: CivC 1714.9]



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0328 After informing plaintiff that she confiscated her former boyfriend's pistol upon learning that he attacked plaintiff with it, defendant owed no duty to warn plaintiff when she returned the pistol if defendant had no reason to believe that he would attack plaintiff again.



KOEPKE v LOO (Serial Paramours) 18 CA4 1444



------------



0329 An intervening cause of harm does not relieve an antecedent wrongdoer of liability unless the intervention was unforeseeable at the time the antecedent wrongdoer acted, or in retrospect it appears not to be extraordinary, or it was not a normal response to a condition created by the antecedent wrongdoer's conduct.



HARDISON v BUSHNELL (Pickup v Semi) 18 CA4 22 [See: BAJI 3.79]



------------



0330 Allegations that defendant physician negligently failed to determine that plaintiff would be born with spina bifida and that had plaintiff's mother been informed she would have aborted the pregnancy make out a case of wrongful life.



GAMI v MULLIKIN (Spina Bifida) 18 CA4 870 [See: Custodio v Bauer 251 CA2 303; Stills v Gratton 55 CA3 698; Curlender v Bio-Science 106 CA3 811; Turpin v Sortini 31 C3 220; Procanik v Cillo 97 NJ 339; Harbeson v Parke-Davis 98 WA2 460]



------------



0331 A statute permitting the recovery of attorney fees by a plaintiff who is successful in an action for elder abuse can be applied to an action instituted before the statute was enacted, but a statute permitting the recovery of damages for the pain and suffering of a deceased victim of elder abuse can not.



ARA v SUPERIOR COURT (Elder Abuse) 18 CA4 1556 [See: Welf&InstC 15600 etseq; Aetna v IAC 30 C2 388; Evangelatos v SuperCt 44 C3 1188; Tapia v SuperCt 53 C3 282]



------------



0332 A third party sued for negligence resulting in plaintiff's job related injury is entitled to a set-off proportional to the negligence of plaintiff's employer, but can not force the employer to participate in the employee's action by cross-complaining for a declaratory judgment fixing the amount of the set-off.



CJL v UNIVERSAL (Declaratory Setoff) 18 CA4 376 [See: LabC 3600 etseq; Associated v WC App Bd 22 C3 829; DaFonte v UpRight 2 C4 593; CivC 1431.2]



------------



0333 REVIEW GRANTED A plaintiff may recover emotional distress damages resulting from damage to property if there was a pre-existing relationship between the plaintiff and defendant, plaintiff's emotional distress was foreseeable, and it was the kind of suffering that plaintiff should not be required to absorb without compensation.



SALKA v DEAN HOMES (Buyer's Distress) 18 CA4 1145 [See: Cooper v SuperCt 153 CA3 1008; Jarchow v Transamerica 48 CA3 917; Windeler v Scheers 8 CA3 844]



------------



0334 An express assumption of the risk and the inclusion of the phrase "As Is" in a contract for the rental of skis does not relieve non contracting parties of potential liability and relieves contracting parties of potential liability for negligence and breach of warranty, but not for misrepresentation or strict liability in tort.



WESTLYE v LOOK SPORTS (Product Liability Disclaimer) 17 CA4 1715



------------



0335 REVIEW GRANTED Strict liability in tort may be applied to make a hotel keeper liable to a guest injured by a defect in a bathtub of the hotel room.



PETERSON v SUPERIOR COURT (Slippery Tub) 18 CA4 763 [See: Becker v IRM 38 C3 454; Pierson v Sharp 216 CA3 340; Muro v SuperCt 184 CA3 1089; Hahn v SuperCt 1 CA4 1448]

------------



0336 The doctrine of "fraud on the market" does not satisfy the requirement of actual reliance in an action for the common law tort of misrepresentation.



MIRKIN v WASSERMAN (Fraud On The Market) 5 C4 1082 [See: Varwig v Anderson 74 CA3 578; Massei v Lettunich 248 CA2 68; CivC 1709 etseq; CorpC 25400, 25500; 15 USC 78j(b); 17 CFR 240.10b-5]



------------



0337 REVIEW GRANTED Under the litigation privilege of CivC 47(b), an intentional misrepresentation made by an insurance company as part of discovery proceedings in litigation against the company's insured and regarding coverage is protected against liability.



CALIFORNIA DREDGING v INA (Privileged Misrepresentation) 18 CA4 572 [See: CivC 47(b); Silberg v Anderson 50 C3 205]



------------



0338 Under the litigation privilege of CivC 47(b), a condominium owners association is immune from liability for the unjustified filing and publication of assessment liens.



WILTON v MOUNTAIN WOOD (Assessment Lien) 18 CA4 565 [See: CivC 47b, 1367; Silberg v Anderson 50 C3 205; Gudger v Manton 21 C2 537]



------------



0339 REVIEW GRANTED Under various theories, a police department and its employees are immune from damage to private property resulting from action taken to apprehend a suspect; in an emergency, such conduct does not constitute an inverse condemnation.



CUSTOMER v CITY (Tear Gas) 18 CA4 472 [See: CaConst I, 19; GovC 820.2, 821.8; PenC 836]



------------



0340 If an employee is terminated for refusing to participate in conduct that would violate the NLRA, action in state court for wrongful termination in violation of public policy is pre-empted, but action for breach of contract and the implied covenant of good faith and fair dealing is not.



KELECHEVA v MULTIVISION (NLRA Pre-emption) 18 CA4 521 [See: Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083; SD Unions v Garmon 359 US 236; Farmer v Carpenters 430 US 290]



------------



0341 DEPUBLISHED Issuance of accusation by DFEH does not preclude subsequent civil suit for damages for employment discrimination in violation of FEHA.



FLANAGAN v SUPERIOR COURT (Ill-Timed Accusation) 18 CA4 1134 [See: GovC 12900 etseq; Dyna-Med v FEHC 43 C3 1379; Peralta v FEHC (1990) 52 C3 40]



------------



0342 Once complaint is filed in action for attorney malpractice, period for timely service on attorney is not tolled pending appeal of the case in which the malpractice allegedly occurred.



SCARZELLA v DEMERS (Pending Appeal) 17 CA4 1762 [See: CCP 583.410, 583.420, 583.430]



------------



0343 Under FEHA, excessive body weight is not a physical handicap or disability unless it results from a physiological disorder which affects a major body system and limits the plaintiff's ability to participate in one or more major life activities.



CASSISTA v COMMUNITY FOODS (Overweight Applicant) 5 C4 1050



------------



0344 In malpractice action against attorney for failing to timely institute the client's action, the statute of limitations does not begin to run until a judgment is entered against the client as a result of the failure.



PLEASANT v CELLI (S/L on S/L) 18 CA4 841



------------



0345 In an action by a lender against an appraiser for negligent appraisal, the statute of limitations did not begin to run until the lender was damaged, which occurred upon foreclosure.



SLAVIN v TROUT (Negligent Appraisal) 18 CA4 1536



------------



0346 Sanctions should not be imposed on an attorney who used information derived from confidential materials inadvertently sent to him by his adversary.



AEROJET v TRANSPORT (Leaked Documents) 18 CA4 996



------------



0347 REVIEW GRANTED Although an attorney discharged by a contingent fee client is entitled only to quantum meruit recovery, an attorney employed full time and exclusively by a single employer is entitled to contract damages upon termination by the employer.



CHYTEN v LAWRENCE (Discharged Attorney) 18 CA4 618



------------



0348 Under LabC 3864, a general contractor cannot enforce an indemnity agreement against a subcontractor unless it was signed by both parties prior to the accident for which indemnity is sought.



NIELSEN v INTERNATIONAL (Executed Indemnity Agreement) 18 CA4 863



------------



0349 A plaintiff's claim that defendant fraudulently induced him to sign an arbitration agreement by telling him it was a mere formality and would not affect his rights requires adjudication by a court, and so the court cannot compel the parties to submit that issue to arbitration.



LYNCH v CRUTTENDEN (Mere Formality) 18 CA4 802



------------



0350 A child's pre-natal medical records are inseparable from its mother's; so when the child waives the privilege by placing the records in issue in a medical malpractice action, the mother cannot prevent disclosure by asserting her own privilege.



PALAY v SUPERIOR COURT (Pre-Natal Records) 18 CA4 919



------------



0351 A trial court should not assign a discovery dispute to a referee if one of the parties is unable to pay referee's fees because of indigence.



SOLORZANO v SUPERIOR COURT (Unaffordable Discovery) 18 CA4 603



------------



0352 The issuance of building permits is a discretionary act for which public employees have statutory immunity, but there is no statutory immunity for failing to issue a certificate of occupancy because, when it has been determined that premises are in compliance with all appropriate regulations, the issuance of a certificate of occupancy is a ministerial act.



THOMPSON v CITY (Certificate Of Occupancy) 18 CA4 49



------------



0353 Exclusivity of WC remedy cannot be raised on appeal after trial if it was not raised in the trial court; after an appellate opinion has been released, the appellate court need not accept a request to depublish on the ground that the matter has been settled.



LUCICH v CITY (Snooze, Lose) 19 CA4 494



------------



0354 After settling his case for the $1 million policy limit and agreeing not to "execute on any judgment or on any potential claim" against the insurer or its insured, plaintiff was prevented from executing on a subsequently entered judgment against the insured for attorney fees.



VAILLETTE v FIREMAN'S FUND (Any Potential Claim) 18 CA4 680



------------



0355 Trial court does not have the power to vacate a binding arbitration award on the ground that the arbitrator decided an issue not raised by the pleadings.



HALL v SUPERIOR COURT (No Vacation) 18 CA4 427



------------



0356 "Gradual" is the opposite of "sudden," so pollution resulting from corrosion that gradually caused underground tanks to leak was not a "sudden occurrence" for purposes of policy coverage.



ACL v NORTHBROOK CASUALTY (Opposite Of Gradual) 17 CA4 1773



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--------------------

*(T/AT II,4 - 12/93)

--------------------

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0357 In view of the fact that their twenty-four year old son had never acted irresponsibly with a firearm, parents did not owe third person a duty to control their son's behavior or to warn of his possession of a firearm.



TODD v DOW (Son With A Gun) 19 CA4 253 [See: Tarasoff v Regents 17 C3 425]



------------



0358 Riding stable did not owe riders a duty to protect them against natural behavior of horse, so recovery was barred by primary assumption of the risk.



HARROLD v ROLLING "J" (A/R Trail Ride) 19 CA4 578



------------



0359 In applying res ipsa loquitur to a medical malpractice claim based on a foreign object left in patient's body during surgery, the jury should be instructed that in deciding whether the accident is the kind that would not usually occur without negligence it may rely on common knowledge, the testimony of expert witnesses, and all the circumstances.



GANNON v ELLIOT (Cap In The Hip) 19 CA4 1



------------



0360 All contents of files of medical staff committees of hospitals that are pertinent to investigation or evaluation of medical personnel or quality of hospital services are protected from discovery under Evidence Code 1157-a.



ALEXANDER v SUPERIOR COURT (Staff Privileges) 5 C4 1218 [See: EvC 1157(a); Hinson v Clairemont 218 CA3 1110; Snell v SuperCt 158 CA3 44; Matchett v SuperCt 40 CA3 623]



------------



0361 An action for emotional distress resulting from sexual contact between defendant psychotherapist and plaintiff's wife sounds in criminal conversation, which was abolished by statute in 1939, and is not sustainable as NIED or medical malpractice unless the nature of the relationship between defendant and plaintiff imposes upon defendant a duty to avoid inflicting mental distress on plaintiff or plaintiff was defendant's patient.



SMITH v PUST (Criminal Conversation) 19 CA4 263 [See: Richard H v Larry D 198 CA3 591]



------------



0362 The registered owner of a motor vehicle has a non-delegable duty to maintain brakes in good working order and is presumed negligent if they are not, regardless of whether she actually had control over the vehicle.



FREMONT v HARTNETT (Pushed Car) 19 CA4 669 [See: VehC 17150; Maloney v Rath 69 C2 442]



------------



0363 A highway common carrier has a non-delegable duty to comply with safety statutes and so is vicariously liable for negligence by a contract carrier that it hires as a subhauler.



GAMBOA v CONTI (Non-Delegable Trucker) 19 CA4 663 [See: Eli v Murphy 39 C2 598; Gaskill v Calaveras 102 CA2 120]



------------



0364 A promise to pay lifetime benefits as long as the insured continued to be insured by a certain medical plan was not a promise to pay benefits after the plan was terminated, and so did not give rise to an action for fraud when the insurer stopped paying benefits after termination of the plan.



FRAKER v SENTRY LIFE (Lifetime Benefits) 19 CA4 276



------------



0365 REVIEW GRANTED Since a corporation acts only through its employees and agents, employees of a corporation acting in their official capacity as such cannot be liable for civil conspiracy with the corporation.



BLACK v B OF A (Employees' Conspiracy) 19 CA4 504



------------



0366 A landowner who releases toxic wastes onto its own land with knowledge that they will remain may be liable for nuisance and continuing trespass to a subsequent remote purchaser of the land.



NEWHALL v SUPERIOR COURT (D's Own Land) 19 CA4 334 [See: CivC 3479 etseq; Mangini v Aerojet 230 CA3 1125; Rest(2d) of Torts 161(1)]



------------



0367 DEPUBLISHED Evidence of a continuing pattern of unfair treatment of an employee who belongs to a protected minority is circumstantial evidence that discriminatory acts were motivated by animus for members of the protected group and permits, although it does not require, an inference of intentional discrimination.



HARRIS v HUGHES AIRCRAFT (Evidence Of Discrimination) 19 CA4 129 [See: GovC 12900 etseq; 42 U.S.C. 2000e etseq; McDonnell Douglas v Green 411 US 792; St. Mary's v Hicks 125 LEd2 407]



------------



0368 After a plaintiff suing for employment discrimination established a presumption of intentional discrimination, defendant's evidence that there was a legitimate non-discriminatory reason for its acts raised a triable issue of fact based on credibility, preventing determination by summary judgment.



MOISI v COLLEGE OF SEQUOIAS (Discrimination Summary Judgment) 19 CA4 564 [See: GovC 12900 etseq; 42 U.S.C. 2000e etseq; McDonnell Douglas v Green 411 US 792; St. Mary's v Hicks 125 LEd2 407]



------------



0369 In a federal court proceeding brought by the EEOC for employment discrimination, the EEOC's primary concern was the interest of the general public rather than the interest of the complaining employee, so a determination in the EEOC's action was not res judicata in the employee's state court action.



VICTA v MERLE NORMAN (EEOC Res Judicata) 19 CA4 454



------------



0370 If a teacher employed by a school district committed an affirmative act that deterred a child plaintiff from filing a claim alleging that the teacher sexually molested him, the school district may be estopped from asserting non-compliance with statutory filing requirements; a question of fact existed as to whether the teacher's directive not to say anything about the incident was such an act.



CHRISTOPHER P v MOJAVE (Teacher's Directive) 19 CA4 165 [See: John R v Oakland 48 C3 438]



------------



0371 An automobile liability carrier had an obligation to defend the insured so long as facts ascertained at the time the defense was tendered to it created a possibility that the claim would be covered by the policy, even though findings at the trial subsequently supported the conclusion that the claim was not covered by the policy.



AMATO v MERCURY (Mother-In-Law's Address) 18 CA4 1784 [See: Gray v Zurich 65 C2 263]



------------



0372 An insured's adult son who was temporarily living with insured after being discharged from the U.S. Marine Corps and while waiting to move into a new condominium which was not yet ready for occupancy was a resident in the insured's household and thereby excluded from coverage under "resident relative" exclusion in policy; insurer was therefore not under an obligation to defend the insured against cross-claims brought against insured by defendants against whom insured's son had asserted a claim.



UTLEY v ALLSTATE (Resident Marine) 19 CA4 815 [See: GovC 243 etseq]



------------



0373 REVIEW GRANTED Workers' compensation carrier had duty to defend insured employer against tort action asserted by former employee for emotional distress resulting from termination allegedly motivated by unlawful discrimination.



LA JOLLA v INDUSTRIAL (Termination Defense) 19 CA4 358 [See: Tameny v Atlantic Richfield 27 C3 167; Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083; Wong v SCIF 12 CA4 686; Gray v Zurich 65 C2 263]



------------



0374 Statute of limitations on claim for attorney malpractice is tolled while attorney continues representing the client, even though the client is aware of the malpractice and has retained another attorney to represent him in the malpractice claim.



O'NEILL v TICHY (Continuous Representation) 19 CA4 114 [See: CCP 340.6(a)(2)]



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0375 Actual injury results from attorney malpractice and statute of limitations on client's claim against attorney begins to run as soon as client incurs fees to have another attorney fix the damage resulting from the alleged malpractice.



BENNETT v McCALL (S/L Malpractice) 19 CA4 122 [See: Kovacevich v McKinney 16 CA4 337; CCP 340.6; Laird v Blacker 2 C4 606]



------------



0376 REVIEW GRANTED Actual injury resulting from attorney's negligence in preparing a security agreement did not occur until P was required to accept less than it would have received had the security agreement been properly drafted.



ITT v NILES (S/L Malpractice) 19 CA4 752 [See: CCP 340.6; Kovacevich v McKinney & Wainwright 19 CalRptr2 692]



------------



0377 DEPUBLISHED Trial court has no jurisdiction under CCP 473 to grant a motion to vacate a default judgment unless the motion is made within 6 months after the default was entered.



BARTONE v SFO AIRPORTER (Vacation Limit) 18 CA4 1848 [See: CCP 473]



------------



0378 An open ended stipulation extending D's time to answer a complaint does not prevent D from subsequently seeking dismissal for failure to prosecute if the extension was given for benefit of P to allow amendment of complaint.



MARRA v MISSION (Open Ended Extension) 19 CA4 724



------------



0379 A city's statutory immunity from liability for defects in a street not accepted into the city's street system does not apply if the city dedicated the street but did not formally accept into its street system.



COPELAND v CITY OF OAKLAND (Dedicated Street) 19 CA4 717 [See: Sts&HwyC 1806]



------------



0380 DEPUBLISHED defendant's refusal to publish photos of same gender couples, although defendant was willing to publish photos of mixed gender couples, violated Unruh Civil Rights Act not because defendant discriminated against homosexuals, but because defendant discriminated on the basis of gender.



ENGEL v WORTHINGTON (Same Sex Photo) 19 CA4 43 [See: CivC 51 etseq]



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0381 In a tort action for loss of value of real property resulting from negligent design and construction, venue is proper in the county where the realty is located.



FOUNDATION v SUPERIOR COURT (Construction Defect Venue) 19 CA4 104



------------



0382 When a new trial is ordered on the issue of damages, plaintiff is entitled to designate new expert witnesses.



GUZMAN v SUPERIOR COURT (New Expert) 19 CA4 705



------------



0383 Malicious prosecution is not available as a remedy for damage resulting from maliciously instituted Family Court proceedings.



BIDNA v ROSEN (Malicious Mother-In-Law) 19 CA4 27



------------



0384 DMV's failure to comply with statute requiring it to publish a list of all licensed Traffic Violator Schools does not give rise to a tort action by a licensed school for damage resulting from DMV's failure to list it.



ZOLIN v SUPERIOR COURT (Traffic School) 19 CA4 1157 [See: VehC 11205; GovC 815, 815.6; MacDonald v State 230 CA3 319]



------------



0385 Action by public employees against a public entity for damage resulting from allegedly breaching fiduciary duty by mismanaging pension plan funds was not excepted from statutory filing requirements and was barred if not preceded by properly filed claim.



DALTON v EAST BAY (Pension Plan Exception) 18 CA4 1566 [See: GovC 905(f)]



------------

--------------------

*(T/AT II,5 - 1/94)

--------------------

-------------



0386 In typing instructions for the administration of medicine to a nine month old child, the pharmacist does not owe the child's parent a duty of reasonable care.



HUGGINS v LONGS (Wrong Dose) 6 C4 124 [See: Dillon v Legg 68 C2 728; Molien v Kaiser 27 C3 916; Marlene F v Affiliated 48 C3 583; Burgess v SuperCt 2 C4 1064]



------------



0387 REHEARING GRANTED In preparing a will, an attorney does not owe a duty to potential beneficiaries to investigate the testamentary capacity of the testator/testatrix.



GONSALVES v SUPERIOR COURT (Testamentary Capacity) 19 CA4 1366 [See: Lucas v Hamm 56 C2 583]



------------



0388 An arbitration agreement made by a minor with a physician treating the minor for pregnancy bound the minor's child and the child's father; the minor did not have the power to disaffirm the agreement.



MICHAELIS v SCHORI (Minor Arbitration) 20 CA4 133 [See: CivC 34]



------------



0389 Without an excuse, failure to demand arbitration by the date specified in an agreement to arbitrate constitutes a waiver of the right to demand arbitration, regardless of the intentions of the parties.



PLATT PACIFIC v ANDELSON (Arbitration Waiver) 6 C4 307



------------



0390 Statutes authorizing a municipality to regulate streets insulates the municipality from nuisance liability for designating a street as a through street or operating it in a way that generated traffic, noise, and headlight glare.



FRIENDS v CITY (Through Street) 20 CA4 152 [See: CivC 3479, 3482; Hassell v SF 11 C2 168; Venuto v Owens 22 CA3 116; VehC 21, 21100; Sts&HyC 27, 5100; GovC 40401]



------------



0391 At a hearing to determine whether a settlement was in good faith, there is a presumption that the allocations and evaluations of non-cash consideration made by the settling parties are reasonable.



ERRECA'S v SUPERIOR COURT (Good Faith Settlement) 19 CA4 1475 [See: CCP 887; Tech-Bilt v Woodward 38 C3 488; Abbott Ford v SuperCt 43 C3 858; Alcal v SuperCt 8 CA4 1121, AT10/92]



------------



0392 REHEARING GRANTED The Court of Appeal should not enter a stipulated reversal if it would have the effect of undoing a finding that a real estate licensee committed fraud, since this finding could result in discipline by the real estate commissioner.



KRUG v PRASZKER (Stipulated Reversal) 20 CA4 226 [See: Lucich v City 19 CA4 494; Neary v Regents 3 C4 273]



------------



0393 An employee assaulted by a fellow employee may maintain a tort action against an employer who ratified the fellow employee's conduct by brushing aside the assaulted employee's complaint, asking the assaulted employee to take no further action, and subsequently promoting the employee who committed the assault.



HERRICK v QUALITY INN (Threatened Guard) 19 CA4 1608 [See: LabC 3600 etseq; CivC 3294; Iverson v Atlas 143 CA3 219; Hart v National 189 CA3 1420]



------------



0394 Workers' compensation is the exclusive remedy for an injury resulting from a negligent chiropractic adjustment rendered by a chiropractor to an employee as an employment benefit.



LAKE v LAKEWOOD CHIROPRACTIC (Maladjusted Employee) 20 CA4 47 [See: LabC 3602; Duprey v Shane 39 C2 781; Sturtevant v County 228 CA3 758]



------------



0395 A corporation is an entity distinct from its shareholders, so an injured employee is not limited to workers' compensation remedies against shareholders of the corporation that employed her.



MILLER v KING (Dual Capacity) 19 CA4 1732 [See: LabC 3602; Roll v Murphy 572 NYS2 193; Duprey v Shane 39 C2 781]



------------



0396 Statutory immunity of persons and organizations that sponsor, support, or supervise the training of Emergency Medical Technicians (EMT's) extends to the owners and operators of ambulances on which trainees receive hands-on experience.



DUCKETT v PISTORESI (EMT Immunity) 19 CA4 1525 [See: H&SC 1799.100]



------------



0397 A plaintiff who lost his lawsuit and whose lawsuit did not substantially result in alteration of the defendant's behavior is not a "successful party" for the purposes of recovering attorney fees under the private attorney general statute.



URBANIAK v NEWTON (Private AG) 19 CA4 1837 [See: CCP 1021.5; Urbaniak v Newton 226 CA3 1128]



------------



0398 A statute lengthening a pre-existing statute of limitations does not revive claims that had lapsed at the time the new statute took effect unless its language specifically applies it to lapsed claims.



DAVID A v SUPERIOR COURT (Resurrected Claim) 20 CA4 281 [See: CCP 340 etseq; Deut 15:1]



------------



0399 Statutory privilege for reports of medical staff evaluation committees of hospitals applies to actions by hospital employees, but does not apply to files on administrative functions which have been delegated to medical staff committees for purpose of shielding such files from discovery.



WILLITS v SUPERIOR COURT (Needlestick) 20 CA4 90 [See: EvC 1157; Alexander v SuperCt 5 C4 1218, T/AT 12/93]



------------



0400 Bodily injury liability coverage in policies issued to asbestos manufacturers was triggered if the policy was in effect when a claimant was exposed to the insured's product, or when the claimant suffered latent injury from previous exposure, or at any time from then until the claimant filed the claim or died; injury was expected or intended only if the insured acted for the purpose of causing it or subjectively knew that it was practically certain to occur; liability imposed because of the presence of asbestos particles on realty is liability for damage to realty; property damage liability coverage is triggered if the policy was in effect when asbestos products were installed or when asbestos particles were released from asbestos products that were previously installed.



ARMSTRONG v AETNA (Asbestos Coverage) 20 CA4 296



------------



0401 An insured seeking a judgment declaring that an insurer is obligated to defend need only establish a potential for liability for a risk covered by the policy; an insurer seeking a judgment declaring that it has no obligation to defend must establish that there is absolutely no potential for liability for a risk covered by the policy.



MONTROSE v SUPERIOR COURT (DDT Coverage) 6 C4 287 [See: 42 USC 9607 etseq; Gray v Zurich 65 C2 263]



------------



0402 Policy language covering injury arising from racial or religious discrimination does not extend coverage to gender discrimination; policy language covering "libel, slander, defamation of character, humiliation or invasion of right of privacy" does not cover "humiliation damages" unless they result from the specified causes of action.



AMERICAN MOTORISTS v ALLIED-SYSCO (Humiliation Damages) 19 CA4 1342 [See: Gray v Zurich 65 C2 263; Bank of the West v SuperCt 2 C4 1254, T/AT 9/92]



------------



0403 Following the declaration of a mistrial, discovery deadlines are based on the date set for the new trial.



BEVERLY HOSPITAL v SUPERIOR COURT (Mistrial Discovery) 19 CA4 1289 [See: CCP 2024, 2034]



------------



0404 A trial court must make an independent determination before accepting the recommendation of a discovery referee, but is not required to hold a hearing.



MARATHON v SUPERIOR COURT (Discovery Hearing) 19 CA4 1256 [See: CCP 639]



------------



0405 A plaintiff who refused to submit to X-rays by defendant's medical expert because of fear of radiation is subject to sanctions unless the fear is shown to be justified, but unless plaintiff's attorney advised plaintiff to refuse, the attorney is not subject to sanctions; sanctions imposed against the plaintiff should be designed to compensate D for expenses resulting from plaintiff's refusal, but should not constitute a fine imposed to punish plaintiff for non-compliance.



GHANOONI v SUPER SHUTTLE (Fear of X-ray) 20 CA4 256 [See: CCP 2023, 2032]



------------



0406 Order imposing discovery sanctions is not appealable until after final judgment.



PETERSON v GM 19 (Discovery Sanctions) 19 CA4 1330 [See: CCP 2023, 904.1; Russell v GM 3 CA4 1114; Ghanooni v Super Shuttle 2 CA4 380; Rao v Campo 233 CA3 1557; Greene v Amante 3 CA4 684; Kohan v Cohan 229 CA3 967]



------------



0407 Separate discovery sanction orders for less than $750 each cannot be added together to make the total greater than $750 and therefore appealable before final judgment.



CALHOUN v VALLEJO (Discovery Sanctions) 20 CA4 39 [See: CCP 904.1(k); Imuta v Nakano 233 CA3 1570; Rao v Campo 233 CA3 1557; Champion v E-Z Serve 15 CA4 561]



------------



0408 A trial court denying a motion for summary judgment must state reasons which identify triable issues and refer to evidence offered in support of and in opposition to the motion and justifying the conclusion that a triable issue exists.



PAYLESS v SUPERIOR COURT (No Reason) 20 CA4 277 [See: CCP 437; Tera v SuperCt 170 CA3 530]



------------



0409 Defendant's concealment within the jurisdiction does not toll time for service of summons so long as service can be made by publication.



PEREZ v SMITH (Untolled Service) 19 CA4 1595 [See: CCP 583.210, 583.250, 583.410; 583.420]



------------



0410 Under CivC 1714.1, which makes a parent vicariously liable up to $10,000 for economic losses resulting from willful misconduct of child, parent may be liable to a joint tortfeasor seeking equitable indemnity.



CURRY v SUPERIOR COURT (Parental Liability) 20 CA4 180 [See: CivC 1714.1]



------------

--------------------

*(T/AT II,6 - 2/94)

--------------------

------------



0411 In determining the existence of a duty of reasonable care, the foreseeability of the risk is a question for the court and should be balanced against the burden of avoiding the risk; in the absence of prior similar incidents, a mall owner has no duty to provide security patrols to protect tenants' employees against attack by third persons.



ANN M v PACIFIC PLAZA (Mall Attack) 6 C4 666 [See: Isaacs v Huntington Mem 38 C3 112]



------------



0412 Violation of a dog leash law is a strict liability crime and results in a presumption of negligence without a showing of mens rea.



DELFINO v SLOAN (Unleashed Dog) 20 CA4 1429 [See: Contra Costa Ord 80-97 Art 416-4.402; Siemers v Eisen 54 C 418; CivC 3342]



------------



0413 A product manufacturer has no duty to print warnings in foreign languages unless required by statute to do so.



RAMIREZ v PLOUGH (Foreign Language Warnings) 6 C4 539



------------



0414 If a physician's failure to recommend a particular course of treatment to a patient is reasonable, the physician has no duty to inform the patient that members of a differing school of medical thought might recommend that course of treatment.



PARRIS v SANDS (Asplenic Patient) 21 CA4 187 [See: Cobbs v Grant 8 C3 229; Truman v Thomas 27 C3 285; Vandi v Permanente 7 CA4 1064; Arato v Avedon 5 C4 1172; Mathis v Morrissey 11 CA4 332]



------------



0415 A public entity that maintains an athletic field has no duty to provide a distraction barrier to prevent passing motorists from being distracted and striking pedestrians, bicyclists, or other motorists.



LOMPOC UNIFIED v SUPERIOR COURT (Siren Song) 20 CA4 1688 [See: GovC 815, 830, 835]



------------



0416 A public entity that, for the purpose of determining whether a police officer was exposed to AIDS when he came into contact with the blood of a person in custody, tests the blood of that person, is doing so for the purpose of determining a course of treatment for the officer and, therefore, is not immune from liability.



SMITH v COUNTY OF KERN (Bad Blood) 20 CA4 1826 [See: GovC 815, 820, 855.6; CA Gov't Tort Liability Practice (CEB 1992) 2.1-2.2]



------------



0417 An off duty police officer drinking beer and socializing with another officer with whom he had been friendly before commencing employment with the police department was not acting within the scope of employment when he negligently discharged his pistol, even though police department policy encouraged officers to carry their weapons when off duty.



HENRIKSEN v CITY OF RIALTO (Off Duty Cop) 20 CA4 1612 [See: GovC 825, 995.2; Mary M v City 54 C3 202; Perez v Van Groningen 41 C3 962; Childers v Shasta 190 CA3 792]



------------



0418 A plaintiff exposed to carcinogens as a result of defendant's negligence can recover damages for emotional distress resulting from fear of cancer only if s/he is more likely than not to develop cancer as a result of the exposure, but if defendant's conduct was malicious, oppressive, fraudulent, or egregious, plaintiff can recover so long as the fear is reasonable; if defendant's negligence made it reasonably certain that plaintiff will require medical monitoring in the future to determine whether s/he has developed cancer, plaintiff can recover the projected costs; the fact that plaintiff was a tobacco smoker may be relevant to a comparative negligence defense if part of his/her fear resulted from smoking and may also be relevant to a claim that plaintiff did not really fear developing cancer.



POTTER v FIRESTONE (Fear of Cancer) 6 C4 965 [See: CivC 3294; Molien v Kaiser 27 C3 916; Christensen v SuperCt 54 C3 868; Miranda v Shell 12 CA4 28, T/AT 3/93]



------------



0419 A "day in the life" video depicting a disabled plaintiff's difficulty in performing every day tasks is admissible so long as a foundation is laid by the testimony of a person present when the video was made stating that it accurately shows what it purports to show.



JONES v CITY (Day In The Life) 20 CA4 436 [See: EvC 352; Rodriguez v McDonnell Douglas 87 CA3 626]



------------



0420 Damages for fraud in the sale of property are measured by the plaintiff's out of pocket loss, consisting of the difference between the value of what plaintiff received and the value with which plaintiff parted in return.



HOUSLEY v CITY (Slope Fraud) 20 CA4 801 [See: CivC 3343; PG&E v County 233 CA2 268]



------------



0421 A landlord had no duty to protect a tenant's prospective business advantage by advising the tenant that its subtenant was moving to a different part of the premises and subletting from a different tenant.



GIRARD v DELTA (Subtenant Switcheroo) 20 CA4 1741 [See: J'Aire v Gregory 24 C3 799; Worldvision v ABC 142 CA3 589]



------------



0422 In calculating whether a defendant violated the Business and Professions Code by selling below cost to damage a competitor, the defendant is not required to use the same accounting method as the plaintiff, so long as the defendant's accounting method is a valid one and not adopted for unlawful purposes.



WESTERN UNION v FIRST DATA (Moneygram) 20 CA4 1530 [See: B&PC 17000 etseq]



------------



0423 If a nuisance can be abated, it is a continuing nuisance, and the statute of limitations does not begin to run until it is actually abated; the occupier of land can maintain a nuisance action against a prior occupier who contaminated the soil.



WILSHIRE v ARCO (Ground Contamination) 20 CA4 732 [See: Capogeannis v SuperCt 12 CA4 668; Newhall v SuperCt 19 CA4 334; Mangini v Aerojet 230 CA3 1125; CCP 338(b)]



------------



0424 In an attorney malpractice action, if the statute of limitations is tolled against an attorney because s/he continues to represent the client, it is also tolled against attorneys who were his/her partners or co-shareholders at the time the malpractice was committed, even though the partnership or corporation was dissolved before the action was commenced.



BEANE v PAULSEN (One For All) 21 CA4 89 [See: CCP 340.6]



------------



0425 A sexual harassment claim can be stated by one male against another male.



MOGILEFSKY v SUPERIOR COURT (Same Sex Harassment) 20 CA4 1409 [See: GovC 12940 (FEHA); Bihun v AT&T 13 CA4 976; Accardi v SuperCt 17 CA4 341; Hart v National 189 CA3 1420]



------------



0426 Workers' compensation is the exclusive remedy for employment discrimination based on a disability that resulted from a job-related injury.



USHER v AMERICAN AIRLINES (Conflicting Statutes) 20 CA4 1520 [See: Shoemaker v Myers 52 C3 1; LabC 132a, 3600 etseq; GovC 12920 etseq]



------------



0427 No tort remedy is available for a wrongful termination accomplished by fraud unless the termination was in violation of some public policy affecting society as a whole.



HUNTER v UP-RIGHT (Fraudulent Termination) 6 C4 1174 [See: Foley v Interactive 47 C3 654; Tameny v ARCO 27 C3 167; Gantt v Sentry 1 C4 1083; Cole v Fair Oaks 43 C3 148; Shoemaker v Myers 52 C3 1]



------------



0428 If a plaintiff who is ignorant of the defendant's identity at the time a lawsuit is commenced names "Doe" defendants as provided by statute, the period of limitations is extended, even though plaintiff's ignorance resulted from negligence or neglect.



BALON v DROST (Forgotten Name) 20 CA4 483 [See: CCP 474]



------------



0429 Proof that a document was properly addressed and mailed results in a presumption that it was received, but if the party to whom it was mailed offers evidence that would support a finding that it was not received, the presumption is rebutted and the court should make a determination regardless of any presumption.



CITY v BONZER (Presumption of Service) 20 CA4 1474 [See: EvC 604, 641]



------------



0430 Defendant's attorney's mistaken belief that plaintiff had agreed to extend defendant's time to move to vacate default judgment was not an extrinsic mistake sufficient to permit the court to grant a motion to vacate the default made more than 6 months after the default was entered.



GODINEZ v BAKER (Extrinsic Fraud) 21 CA4 195 [See: CCP 473]



------------



0431 Default cannot be taken against a corporation unless it was designated as a corporation in the pleadings and served as a corporation.



SCHOTT v KALAR (Corporate Default) 20 CA4 943 [See: Weil and Brown, Civil Procedure Before Trial (The Rutter Group 1993) Pleadings 6:33, pg 6.9]



------------



0432 A corporation which is no more than the alterego of its sole shareholder and which was formed for the purpose of evading the vexatious litigant law may be declared a vexatious litigant.



SAY & SAY v EBERSHOFF (Vexatious Corporation) 20 CA4 1759 [See: CCP 391 etseq]



------------



0433 Even though a settling party's share of a settlement is substantially lower than its probable share of liability, a trial court may find the settlement to be in good faith if the settling party's financial circumstances would make collection of a judgment against that party impossible or impracticable.



AERO-CRETE v SUPERIOR COURT (Judgment Proof Settlor) 21 CA4 203



------------



0434 A party may appeal a judgment on the ground that the trial court should not have entered a remittitur, even after collecting on the Judgment.



HEACOCK v IVORETTE (Big Buck) 20 CA4 815



------------



0435 Court expressed displeasure at tendency of appellate courts to "save" appeals and dismissed a purported appeal from an order granting summary judgment, ruling that, although a judgment based on order of summary judgment is appealable, the order itself is not.



CURRIE v O'CONNOR HOSP (No Judgment) 21 CA4 140 [See: CCP 901]



------------



0436 A post judgment order denying attorney fees is appealable; a plaintiff who seeks pre-judgment interest under CivC 3291 has the burden of establishing what part of the judgment was for personal injuries.



LAKIN v WATKINS (False Identification) 6 C4 644 [See: CivC 3291; CCP 998, 2033]



------------



0437 An order for discovery sanctions is not appealable until final judgment.



BALLARD v TAYLOR (Discovery Sanctions) 20 CA4 1736 [See: CCP 904, 2023; Peterson v GM 19 CA4 1330 Russell v GM 3 CA4 1114; Ghanooni v Super Shuttle 2 CA4 380; Rao v Campo 233 CA3 1557; Greene v Amante 3 CA4 684; Kohan v Cohan 229 CA3 967]



------------



0438 REVIEW DENIED Trial court does not have the power to order a deponent to perform a physical reenactment at a videotaped deposition.



STERMER v SUPERIOR COURT (Video Reenactment) 20 CA4 777 [See: CCP 2025(l)(1)]



------------



0439 DISAPPROVED When a defendant is served by publication because she is unlocatable and there is no indication that she is aware of the action pending against her, a trial court should not deem plaintiff's unanswered requests for admission admitted, but should exercise discretion to fashion a just and equitable remedy.



BRIGANTE v YEE-LEE LO HUANG (Missing Defendant) 20 CA4 1569 [See: CCP 2033]



------------



0440 Proof that a juror sitting on a case read a newspaper article about the case and formed an opinion prior to the close of plaintiff's case is sufficient evidence of misconduct to result in a mistrial; expert testimony by a physician not listed in response to appropriate request for list of experts should have been excluded; a young disfigured plaintiff unable to communicate with her attorneys or to participate in the trial did not have a right to be present during the liability phase of a bifurcated trial.



CASSANDRA P. v CENTER FOR WOMEN'S HEALTH (Prejudicial Article) 20 CA4 1673 [See: EvC 1150; CCP 2034]



------------



0441 When a judgment is reversed and the case remanded to the trial court for determination of a fact issue, if the case is assigned to the same judge who issued the order that was reversed, the party who obtained the reversal is entitled to peremptorily challenge the trial judge.



HENDERSHOT v SUPERIOR COURT (Challenged Judge) 20 CA4 860 [See: CCP 170.6]



------------



0442 If a plaintiff receives a judgment for attorney fees against defendant because plaintiff's damages resulted from defendant's commission of a felony, defendant's insurance carrier is not obligated to pay the judgment.



BAKER v MID-CENTURY (Felony Fees) 20 CA4 921 [See: CCP 1021.4; InsC 533; CivC 1668]



------------



0443 The transfer of an insurance policy by the seller of realty to the buyer does not result in an increase in the policy limits.



GOLDEN EAGLE v FOREMOST (Same Policy) 20 CA4 1372



------------



0444 If a third party sued by an employee who has received workers' compensation benefits alleges that the employer's negligence was a cause of the employee's injury, the employer seeking to regain the benefits paid cannot rely on its lien against the proceeds of the employee's action, but must intervene in the action.



AETNA v SUPERIOR COURT (No Lien) 20 CA4 1502 [See: LabC 3600 etseq, 3852, 3853, 3856, 3859, 3860; CJL v Universal 18 CA4 376; Witt v Jackson 57 C2 57; Associated v WCAB 22 C3 829; DaFonte v UpRight 2 C4 593]



------------



0445 The operation of premises in a way that permits and encourages the unlawful sale of drugs thereon constitutes a nuisance.



LEW v SUPERIOR COURT (Drug House) 20 CA4 866 [See: CivC 3479; H&S 11570; Ann M v Pacific Plaza 6 C4 666]



------------

--------------------

*(T/AT II,7 - 3/94)

--------------------

------------



0446 While discussing a patient's condition, a psychiatrist who was treating the patient for depression owed the patient a duty to inform a psychiatrist who was treating the patient for an eating disorder about the patient's repeated suicide attempts.



GROSS v ALLEN (Suicidal Patient) 22 CA4 354 [See: Tarasoff v Regents 17 C3 425; Bellah v Greenson 81 CA3 614; Mullin v Chandler 185 CA3 1127]



------------



0447 The statute granting a landholder immunity from negligence liability for injury resulting from recreational use of the land does not operate if the landholder receives a consideration for such use, but a promise to hold the landholder harmless from liability is not sufficient consideration to defeat the operation of the statute.



JOHNSON v UNOCAL (No Consideration) 21 CA4 310 [See: Hubbard v Brown 50 C3 189; Ornelas v Randolph 4 C4 1095; CivC 846]



------------



0448 REVIEW GRANTED A cause of action for asbestos-related mesothelioma accrues when the plaintiff suffers appreciable harm from that disease.



COUGHLIN v OWENS (Asbestos Accrual) 21 CA4 572 [See: Evangelatos v SuperCt 44 C3 1188; Armstrong v Aetna 20 CA4 296, T/AT 1/94]



------------



0449 An employee acting purely for her/his own benefit and entirely outside of his/her employment duties is not acting within the scope of employment, even though the terms of employment require the employee to be on call at all times.



ELDER v RICE (24-hour Call) 21 CA4 1604 [See: CivC 2338]



------------



0450 After the arrest of his brother for criminal homicide, plaintiff became a public figure by making statements to the press concerning the prosecution and by furnishing the press with photographs, and in a defamation lawsuit is therefore required to show actual malice; the statute concerning a demand for correction and restricting a defamation plaintiff to special damages unless the correction is made does not apply in an action against an individual defendant whose published letter to a newspaper editor contained defamatory statements.



DENNEY v LAWRENCE (Identical Twin) 22 CA4 927 [See: Dresbach v Doubleday 518 FS 1285; Street v NBC 645 F2 1227; Mosesian v McClatchy 233 CA3 1685; Gertz v Robert Welch 418 US 323; CivC 48a]



------------



0451 DEPUBLISHED If a writing falsely attributed to the plaintiff is so obviously satirical that the reasonable reader would not believe that it was actually written by the plaintiff, it cannot be false because it does not assert a fact, and therefore cannot result in defamation liability.



PATRICK v SUPERIOR COURT (Phoney Memo) 22 CA4 354 [See: Phila Newspapers v Hepps 475 US 767; Greenbelt v Bresler 398 US 6; Hustler v Falwell 485 US 46]



------------



0452 A statement that a journalist's objectivity has been compromised by her/his interest in a particular issue is a statement of opinion and cannot be the basis of defamation liability, but a statement that an interested third person told the defendant that the plaintiff had an interest in the issue is an assertion of fact and, if false, may be the basis of defamation liability.



SAVAGE v PG&E (No Nukes) 21 CA4 434 [See: PG&E v Bear 50 C3 1118]



------------



0453 Members of a hospital committee who instituted an administrative proceeding to withdraw plaintiff's surgical privileges are not liable for malicious prosecution so long as they had a reasonable suspicion (i.e., probable cause to believe) that plaintiff was not qualified to perform surgical procedures.



NICHOLSON v LUCAS (Dental Privileges) 21 CA4 1657 [See: Sheldon Appel v Albert 47 C3 863]



------------



0454 Plaintiff's suit against his former spouse for the return of property on the ground that she had fraudulently induced him to marry her by making false representations concerning love and sexual attraction sounds in breach of promise of marriage and is prohibited by anti-heartbalm statutes.



ASKEW v ASKEW (Heartbalm) 22 CA4 942 [See: CivC 43.5; Smith v Pust 19 CA4 263]



------------



0455 Under the equal protection clause of the 14th Amendment to the U.S. Constitution, a plaintiff has a protected liberty interest in the companionship of a close family member, but interference with this interest does not lead to liability unless it resulted from "deliberate indifference;" in the case of a jail suicide, this requires the plaintiff to prove that there was a high risk that the decedent would commit suicide, and defendant knew of the risk or it was so obvious that the lay person would easily have recognized it, and defendant failed to take reasonable measures.



IRWIN v CITY OF HEMET (Jail Suicide) 22 CA4 507 [See: Daniels v Williams 474 US 327; US Const Am 4, 8, 14]



------------



0456 Unless there is a risk of serious harm to the person being detained, there is no right to forcibly resist unlawful detention by police officers.



EVANS v CITY OF BAKERSFIELD (Resisting Detention) 22 CA4 321 [See: PenC 834a; People v Coffey 67 C2 204]



------------



0457 REVIEW GRANTED Under statute, government employees are immune from negligence liability for injury resulting from the operation of an emergency vehicle, but the government entity that employs them is not and, therefore, may be vicariously liable for their negligence.



THOMAS v CITY (Run-over Runaway) 22 CA4 765 [See: GovC 815.2, 810; VehC 17004, 17001]



------------



0458 A municipality that promulgates a policy for high speed vehicle pursuits is immune from liability for damage resulting from such pursuits if the policy complies with statutory requirements, but Daly City's policy did not contain sufficiently specific guidelines to satisfy the statute's requirements and so did not immunize the city against liability.



BERMAN v DALY CITY (Pursuit Policy) 21 CA4 276 [See: VehC 17004; 17004.7; Colvin v City 11 CA4 1270; Payne v City 12 CA4 1738; Kishida v State 229 CA3 329; Weiner v City 229 CA3 1203; 42 USC 1983]



------------



0459 An employer is strictly liable for sexual harassment committed by a supervisory employee, but is not liable for punitive damages unless the employee was a managing agent, or was employed in conscious disregard of the rights of others.



KELLY-ZURIAN v WOHL (Employer Puni's) 22 CA4 397 [See: Harris v Forklift 126 LEd2 295; GovC 12940; CCR 7287.6(b)(2); Fisher v San Pedro 214 CA3 590; CivC 3294(b)]



------------



0460 Workers' compensation is the exclusive remedy for damages resulting from termination based on disability caused by a job related injury.



ANGELL v PETERSON TRACTOR (Compensation Bargain) 21 CA4 981 [See: Usher v AA 20 CA4 1520, T/AT 2/94; Judson v WCAB 22 C3 658; Tameny v Atlantic 27 C3 167; GovC 12920; LabC 132a; Pickrel v General Tel 205 CA3 1058; Cole v Fair Oaks 43 C3 148; Shoemaker v Myers 52 C3 1]



------------



0461 An employer who secures payment of workers' compensation by purchasing insurance or obtaining permission to self insure is immune from tort liability to employees for job-related injuries, but a contract between a special employer and a general employer requiring the general employer to maintain workers' compensation insurance does not satisfy the special employer's obligation to secure payment, and does not immunize the special employer against tort liability.



DOUGLAS OIL v WESTERN ASPHALT (Special Employer) 22 CA4 372 [See: LabC 3700, 3706]



------------



0462 An arbitration agreement signed by a patient and purporting to bind all persons who have claims arising from the relationship of doctor and patient binds the patient's spouse and applies to his claim for loss of consortium based on the doctor's alleged malpractice.



MORMILE v SINCLAIR (Spouse Arbitration) 21 CA4 1508 [See: CCP 1295; Michaelis v Schori 20 CA4 133, T/AT 1/94; Baker v Birnbaum 202 CA3 288]



------------



0463 A trust beneficiary lacks standing to sue for torts committed against the trust unless the trustee's failure to institute such a suit is wrongful.



PILLSBURY v KARMGARD (Trust Tort) 22 CA4 743 [See: CCP 367, 369]



------------



0464 Unless an attorney's neglect in the untimely filing of a claim against a public entity is excusable, a court is not required to grant relief from the GovC filing requirement; a trial court cannot find an attorney's neglect to be excusable without an explanation by the attorney as to what the neglect was and how it occurred.



TACKETT v CITY (Inexcusable Neglect) 22 CA4 60 [See: CCP 473; GovC 946.6]



------------



0465 The state of California is immune from liability for torts committed by members of the California National Guard acting within the scope of their employment.



ROMERO v STATE (National Guard Immunity) 21 CA4 1002 [See: GovC 815; M&VC 392]



------------



0466 Plaintiff's claim of wrongful termination based on being fired for failing to return to work when his employer's Employee Benefit Committee determined that he was capable of doing so was a claim related to an employee benefit plan and therefore pre-empted by ERISA.



AT&T v SUPERIOR COURT (Erisa Pre-emption) 21 CA4 1673[See: 29 USC 1001]



------------



0467 An intentional tortfeasor may receive comparative equitable indemnity from a joint intentional tortfeasor.



BAIRD v JONES (Intentional Tort Indemnity) 21 CA4 684 [See: American Motorcycle v SuperCt 20 C3 578]



------------



0468 A defendant in a civil action who claims protection of the 5th Amendment privilege against self-incrimination must show that s/he is being compelled to testify and that such testimony might be used against him/her in a criminal proceeding; the possible imposition of civil sanctions for refusing to testify is not compulsion to testify; if the statute of limitations on the crime for which defendant's testimony might be self-incriminating appears to have expired, defendant must show either a possibility that it has been tolled or the possible relevance of the testimony to the prosecution for some other crime.



BLACKBURN v SUPERIOR COURT (Self-incrimination) 21 CA4 414 [See: EvC 1101(b); USConst Amend5]



------------



0469 Before sending discovery issues to a discovery referee and allocating fees to be paid by the parties, the trial court should consider the financial condition of a party of modest means and order accordingly.



MCDONALD v SUPERIOR COURT (Modest Means) 22 CA4 364 [See: CCP 639; Solorzano v SuperCt 18 CA4 603, T/AT 11/93]



------------



0470 The FEHA venue section is subordinate to the CCP section regarding changes of venue for the convenience of witnesses or to serve the ends of justice.



RICHFIELD v SUPERIOR COURT (FEHA Venue) 22 CA4 222 [See: GovC 12965(b); CCP 397(3)]



------------



0471 Judgment for attorney fees as provided by contract is not automatically stayed pending appeal.



O'GRADY v SUPERIOR COURT (Atty Fees Stay) 21 CA4 1021 [See: CivC 1717; CCP 916, 917.1; Bank v SuperCt 3 C4 797, T/AT 12/92]



------------



0472 A contract clause permitting recovery of attorney fees by the prevailing party in an action to enforce the contract permits the recovery of fees incurred by that party in defending against a cross claim of fraud in inducing the contract.



SILIGO v CASTELLUCCI (Cross Claim Fees) 21 CA4 873 [See: CivC 1717]



------------



0473 If a claimant's attorney fees might be recoverable, a retainer agreement that empowers the attorney to negotiate settlement of the attorney fee claim separate from settlement of the client's damage claim creates a potential conflict of interest, and a bifurcated settlement negotiated in that manner should be submitted for approval by the trial court before it binds the parties.



RAMIREZ v STURDEVANT (Bifurcated Settlement) 21 CA4 904



------------



0474 A trial court could find a settlement to be made in good faith even though issue allocations took the form of mathematical formulas to be applied after judgments are rendered against non-settling parties and parts of the settlement were allocated to claims of uncertain validity for emotional distress resulting from property damage and litigation costs which might or might not have been recoverable after trial; in evaluating the assignment of indemnity rights the trial court should consider the maximum potential indemnity, the costs of litigation, and the likelihood of recovery and collection.



REGAN ROOFING v SUPERIOR COURT (Complex Settlement) 22 CA4 1685 [See: So Cal Gas v SuperCt 187 CA3 1030; Alcal v SuperCt 8 CA4 1121, T/AT 10/92; Erreca's v SuperCt 19 CA4 1475, T/AT 1/94; Salka v Dean 18 CA4 1145, T/AT 11/93]



------------



0475 Wheeler, in which the 1st District held that the Market Share theory could be applied to a claim based on exposure to asbestos brake pads, should be given retroactive effect and applied to cases that went to trial before Wheeler was decided.



RICHIE v BRIDGESTONE/FIRESTONE (Retroactive Market Share) 22 CA4 335 [See: Wheeler v Raybestos Manhattan 8 CA4 1152, T/AT 10/92]



------------



0476 The good faith settlement provisions of CCP 887 apply only when the injured claimant is a party to the settlement, and do not apply to an agreement among tortfeasors fixing the apportionment of fault.



ARIZONA PIPELINE v SUPERIOR COURT (Tortfeasors' Settlement) 22 CA4 33 [See: CCP 887; Tech-Bilt v Woodward 38 C3 488; Abbott Ford v SuperCt 43 C3 858; Alcal v SuperCt 8 CA4 1121, AT10/92; Erreca's v SuperCt 19 CA4 1475]



------------



0477 Because a breach of contract action asserts the validity of the contract it is inconsistent with a claim that disputes the validity of the contract, so a plaintiff who sues a contracting party must elect between an action for breach of contract and an action for fraudulently inducing the contract; however, a plaintiff who has sued a contracting party for breach of contract can still sue a non-contracting party for fraudulently inducing the contract.



CROENI v GOLDSTEIN (Inconsistent Theories) 21 CA4 754 [See: CivC 3343]



------------



0478 A defendant may be liable in tort for the bad faith denial of a contract even though the denial was contained in a statement made to a third party and prior to breach of the contract in question.



STOLL v SHUFF (Bad Faith Denial) 22 CA4 22 [See: Seaman's v Standard Oil 36 C3 752]



------------



0479 Damages resulting from plaintiff's change of employment in reliance on defendant's fraudulent representations regarding the duration of prospective employment were the same, whether defendant's conduct is called breach of contract, or misrepresentation, or violation of Labor Code sections, and it was error to allow the jury to award separate damages on each cause of action.



FINCH v BRENDA RACEWAY (Once is Enough) 22 CA4 547 [See: Tavaglioni v Billings 4 C4 1150; LabC 970]



------------



0480 Damage to personal property is not measured by replacement cost, but by the resulting reduction in value, the cost of repair, or the market value immediately prior to the damage, whichever is least.



HAND v SNOWLINE (Pantographs) 21 CA4 863



------------



0481 REVIEW GRANTED Having previously overturned the trial court's determination as to policy coverage, the First District now reversed judgments on bad faith claims because of jury instructions based on the originally erroneous determination.



McLAUGHLIN v NAT'L UNION (Technical Equities) 21 CA4 486 [See: Chatton v Nat'l Union 10 CA4 846, T/AT 1/93; Helfand v Nat'l Union 10 CA4 869]



------------



0482 Conversion resulting in loss of use of plaintiff's personalty is neither property damage nor accidental and, therefore, is not covered by the converter's general liability policy.



COLLIN v AMERICAN EMPIRE (Accidental Conversion) 21 CA4 787 [See: InsC 11580]



------------



0483 In spite of policy language to the contrary, an insurer that wrongfully fails to defend its insured is liable directly to a third party claimant on a judgment to which the insured stipulated and which is neither fraudulent nor collusive.



SANCHEZ v TRUCK INSURANCE EXCHANGE (No Action) 21 CA4 1778 [See: InsC 11580]



------------



0484 A California court is not required to recuse itself because it is a defendant in a frivolous and nonmeritorious federal court action brought by a vexatious litigant who follows a pattern of suing most of the judges before whom it is to appear; an appeal may be dismissed on the ground that the appellant has failed to comply with lawful orders of the Superior Court; a vexatious litigant who follows a pattern of filing frivolous and premature appeals for the purpose of delay, and its attorney, were properly subject to sanctions totaling $150,000.



SAY & SAY v CASTELLANO (Vexatious Appeal) 22 CA4 88



------------

--------------------

*(T/AT II,8 - 4/94)

--------------------

------------



0485 In the absence of a physical injury, a direct victim of defendant's conduct may recover for negligently inflicted emotional distress only if there was a preexisting consensual relationship between the parties and defendant's conduct was outrageous.



BRO v GLASER (Sloppy Caesarian) 22 CA4 1398 [See: Dillon v Legg 68 C2 728; Molien v Kaiser 27 C3 916]



------------



0486 Statutory immunity for landholders who permit recreational use of their land does not apply to injuries that occur off the land; a landholder has no duty to protect persons against hazards outside the land unless the landholder created or controlled those hazards.



SWANN v OLIVIER (Ockham's Razor) 22 CA4 1324 [See: CivC 846; Charpentier v Von Geldern 191 CA3 101]



------------



0487 REVIEW GRANTED A manufacturer that knows that its product will be used by persons other than the purchaser has a duty to give reasonable warnings to ultimate users, and a question of fact may exist as to whether warning the purchaser is sufficient to fulfill that duty.



MACIAS v STATE (Malathion Blindness) 22 CA4 1788 [See: USConst. VI,2; Rest(2d) Torts 388(c)(n)]



------------



0488 An upstream riparian owner is liable for a proportionate share of damage to a downstream owner resulting from the upstream owner's unreasonable conduct regarding a natural watercourse; if the upstream owner is a public entity, it is strictly liable for a proportionate share of damage to a downstream owner resulting from the public entity's use of a natural watercourse that has been converted to a public work.



LOCKLIN v CITY OF LAFAYETTE (Watercourse) 7 C4 327 [See: CaConst I, 19; San Gabriel v VC 182 C 392; Archer v City 19 C2 19; Keys v Romley 64 C2 396]



------------



0489 To establish that defendant's negligence in the administration of chemotherapy was a cause in fact of the recurrence of plaintiff's cancer, plaintiff must show that there is better than a 50/50 chance that the cancer would not have recurred without the negligence.



DUARTE v ZACHARIAH (Bone Marrow) 22 CA4 1652 [See: CivC 1708]



------------



0490 If a doctor's malpractice is a proximate cause of plaintiff's injury, it is also a proximate cause of complications resulting from the malpractice of a second doctor in treating plaintiff for that injury.



MAXWELL v POWERS (Serial Healers) 22 CA4 1596 [See: BAJI 14.66; Ash v Mortensen 24 C2 654; CCP 619]



------------



0491 REVIEW GRANTED Strict liability for defects in rented premises should not be imposed on a landlord who rents out only one parcel of realty, which she originally purchased as a vacation home.



COHEN v MYERS (Vacation Rental) 22 CA4 1701 [See: Escola v CocaCola 24 C2 453; Price v Shell 2 C3 245; Becker v IRM 38 C3 454; Vaerst v Tanzman 222 CA3 1535]



------------



0492 Breast implants should be regarded as prescription drugs and their suppliers not subject to strict products liability for defective design or inadequate warning.



ARTIGLIO v SUPERIOR COURT (Defective Implant) 22 CA4 1388 [See: McGhan v SuperCt 11 CA4 804, T/AT 2/93; Greenman v Yuba 59 C2 57; Brown v SuperCt 44 C3 1049; Hufft v Horowitz 4 CA4 8; Plenger v Alza 11 CA4 349, T/AT 2/93]



------------



0493 Respondeat superior applies when an employee's tortious conduct involves a risk that is typical of or broadly incidental to the employer's enterprise, and whether a premeditated murder involved such a risk when committed by a police officer abusing his authority while on duty, armed, and in uniform presents a triable issue of fact.



KNOTT v STATE (Killer Cop) 23 CA4 210 [See: Mary M v City 54 C3 202; John R v Oakland USD 48 C3 438; White v County 166 CA3 566; CivC 1431]



------------



0494 Because a landlord has a non-delegable duty to keep premises in good repair, it is vicariously liable for the negligence of an independent contractor hired for that purpose, and since Proposition 51 does not apply to vicarious liability, the landlord and the independent contractor are jointly and severally liable for all injuries proximately caused by the contractor's negligence.



SRITHONG v TOTAL (Non-delegable Apportionment) 23 CA4 721 [See: Maloney v Rath 69 C2 442; Brown v Pepperdine 23 C2 256; Poulsen v Charlton 224 CA2 262; Miller v Stouffer 9 CA4 70, T/AT 11/92; Rashtian v BRAC-BH 9 CA4 1847, T/AT 12/92; CivC 1431]



------------



0495 A contract to purchase realty imposes legal obligations on the purchaser, so a plaintiff who contracted in reliance on the seller's misrepresentation has been damaged by that reliance and is not prevented from recovering damages even though s/he learned of the falsity before close of escrow.



JUE v SMISER (Famous Architect) 23 CA4 312



------------



0496 Used as a heading for an investment newsletter column in which defendant criticized plaintiff's manipulation of statistics in its advertising, the phrase "Lies, Damn Lies, and Fund Advertisements" is clearly a play on words borrowed from a recognizable quote, and is the kind of loose, figurative, lusty, and hyperbolic phrase that is not likely to be understood as anything but an expression of opinion, and therefore cannot be the basis of liability for defamation or interference with business advantage.



MORNINGSTAR v SUPERIOR COURT (Damn Lies) 23 CA4 676 [See: Patrick v SuperCt 22 CA4 814, T/AT 3/94; Greenbelt v Bresler 398 US 6; Hustler v Falwell 485 US 46; Milkovich v Lorain 497 US 1; CivC 45]



------------



0497 Under California's Lemon Law, civil penalties are available without proof that defendant's failure to comply with the statute was wilful.



SUMAN v BMW OF NA (Lemon Law) 23 CA4 1 [See: CivC 1790 etseq]



------------



0498 Damages for emotional distress are not usually available for violation of the Song Beverly Consumer Warranty Act; failure to replace or repair the plaintiff's vehicle was not wilful if defendant believed in good faith that it was not required to do so.



KWAN v MERCEDES-BENZ OF NA (Lemon Law) 23 CA4 174 [See: CivC 1794 etseq]



------------



0499 Although the California Supreme Court's decision in Neary requires the Court of Appeal to grant a request for stipulated reversal in the absence of extraordinary circumstances, a statute authorizing the Real Estate Commissioner to discipline a real estate licensee against whom a judgment for fraud is obtained is a sufficiently extraordinary circumstance to justify denial of a request for stipulated reversal of a judgment for fraud against a real estate licensee.



KRUG v PRASZKER (Stipulated Reversal) 22 CA4 1814 [See: Lucich v City 19 CA4 494, T/AT 11/93; Neary v Regents 3 C4 273, T/AT 10/92]



------------



0500 Employment without a specified term is presumed to be at will, and evidence tending to rebut that presumption raises a question of fact.



HAYCOCK v HUGHES *(T/AT Will Employment) 22 CA4 1473 [See: LabC 2922; EvC 115, 606]



------------



0501 REVIEW GRANTED A person sentenced to perform service on behalf of the city and county is an employee and is limited to workers' compensation benefits for injuries sustained while performing the service.



ARRIAGA v COUNTY (Community Service) 23 CA4 800 [See: LabC 3600 etseq]



------------



0502 Trial court had discretion to amend a judgment to add as judgment debtor a limited partnership which was the successor to, made up of the same people who held stock in, and conducted the defense on behalf of the named defendant, and which never mentioned that the named defendant was no longer the owner of the business tortfeasor until after judgment had been entered.



CARR v BARNABEY'S (Right Party, Wrong Name) 23 CA4 14 [See: CCP 187]



------------



0503 Following voluntary dismissal by plaintiff on the day of trial, trial court has discretion to award costs neither specifically permitted nor prohibited by statute for the preparation of trial exhibits by defendant.



APPLEGATE v ST FRANCIS (Unused Exhibits) 23 CA4 361 [See: CCP 1033.5]



------------



0504 In calculating attorney fees to be awarded to defendant because of plaintiff's failure to file a certificate of merit before serving defendant with a complaint for malpractice, the trial court should consider the time spent in preparing the application for attorney fees, including time spent by defendant's attorney's paralegals.



GUINN v DOTSON (Paralegal Fees) 23 CA4 262 [See: CCP 411.35]



------------



0505 An agreement to submit a claim to binding arbitration makes the arbitrator's award judicially reviewable only on grounds specified in CCP 1286.2, and not for errors in law; even though an arbitration agreement called for the application of California law, an arbitrator did not exceed his powers by failing to apply a particular California statute; an arbitrator has no power to appoint a receiver.



MARSCH v WILLIAMS (No Receiver) 23 CA4 238 [See: CCP 1286.2]



------------



0506 An agreement between business entities to arbitrate all disputes arising under the contract in which it was contained did not apply to a dispute arising out of a different contract between different business entities, even though the entities involved in both contracts had the same principals and even though there was some relationship between the themes of the two contracts.



MARSCH v WILLIAMS (Different Agreement) 23 CA4 250 [See: CCP 1286.2]



------------



0507 Questions requiring a litigant to list all facts, witnesses, and documents supporting a particular legal contention may be asked in interrogatories and answered with the assistance of counsel, but may not be asked at s.



RIFKIND v SUPERIOR COURT (Legal Contention) 22 CA4 1255 [See: Pember v SuperCt 240 CA2 888]



------------



0508 A dismissal for failure diligently to prosecute was affirmed on the grounds that the attorney's excuse was neither credible nor reasonable, even though one of the Justices deciding the appeal believed that the attorney's excuse was not only credible but the most reasonable course the attorney could have taken.



WILLIAMS v LA USD (Believe it or Not) 23 CA4 84 [See: CCP 473]



------------



0509 If plaintiff knows the identity and location of physicians s/he intends to sue for malpractice, the statute of limitations is not tolled when service of the notice of intention to sue is made on the hospital where the physicians had staff privileges unless the physicians received actual notice of such service.



HANOOKA v PIVKO (No Service) 22 CA4 1553 [See: CCP 364]



------------



0510 The time for filing a Notice of Appeal begins to run on the date of service of the notice of entry of judgment, and not on the date the notice of entry of judgment is filed.



CASADO v SEDGWICK (Untimely Appeal) 22 CA4 1284 [See: CA RofC 2(a)]



------------

--------------------

*(T/AT II,9 - 5/94)

--------------------

------------



0511 DEPUBLISHED Whether an attorney representing a general partner owed attorney-client obligations to limited partners depended on the occurrence and foreseeability of harm to the limited partners, the attorney's intent to affect them, and the limited partners' reasonable belief concerning their relationship with the attorney, all of which could raise triable issues of fact.



RONSON v SUPERIOR COURT (Implied Client) 24 CA4 94 [See: Lucas v Hamm 56 C2 583; Goodman v Kennedy 18 C3 335; Responsible Citizens v SuperCt 16 CA4 1717]



------------



0512 Under CCP 377.34, if the plaintiff in a personal injury action dies before judgment is entered, non economic damages cannot be awarded; the trial court lacked power to bypass this rule by entering judgment nunc pro tunc as of the termination of the first phase of a bifurcated trial in which the jury made findings as to causation and damages, but no finding as to defendant's liability.



WILLIAMSON v PLANT (Untimely Death) 23 CA4 1406 [See: CCP 377.34 (formerly ProbC 573), 36]



------------



0513 If land is contaminated by refined petroleum products, a landholder required by law to remove the contaminants is not entitled under California's Carpenter-Presley-Tanner Act to indemnity by a former possessor who caused the contamination, but may sue the former possessor for public nuisance, private nuisance, and trespass; if the contaminant is capable of being removed, the statute of limitations does not begin to run until its removal.



KFC v MEGHRIG (Gasoline Clean-up) 23 CA4 1167 [See: H&SC 25300 etseq; CivC 3479-3481, 3493; Capogeannis v SuperCt 12 CA4 668, T/AT 3/93; Newhall v SuperCt 19 CA4 334, T/AT 12/93; Wilshire v ARCO 20 CA4 732, T/AT 2/94]



------------



0514 If a law enforcement officer was terminated to prevent him from enforcing the law, the termination was in violation of public policy, and the discharged employee may recover in tort against his former employer.



PARADA v CITY OF COLTON (Building Permit) 24 CA4 356 [See: LabC 2922; Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083]



------------



0515 A party to a contract is not liable in tort for conspiring to interfere with the contract.



APPLIED EQUIP v LITTON (Contractual Tort) 7 C4 503 [See: Lumley v Gye 118 EngRep 749; PG&E v Bear 50 C3 1118; Wise v Southern Pacific 223 CA2 50]



------------



0516 REHEARING GRANTED Violation of unfair practices provisions of the Insurance Code does not give rise to civil action; unfair practices provisions of the Business and Professions Code are not superseded by the Insurance Code, and their violation does give rise to civil action.



MANUFACTURERS LIFE v SUPERIOR COURT (Settlement Annuities) 23 CA4 1629 [See: InsC 790 etseq; B&PC 17000 etseq, 17200 etseq, 16720 etseq; Moradi-Shalal v Fireman's 46 C3 287]



------------



0517 An insurance carrier may be liable in tort to a judgment creditor for its bad faith refusal to pay a judgment obtained against its insured for a covered risk.



HAND v FARMERS (Bad Faith Judgment) 23 CA4 1847 [See: Royal Globe v SuperCt 23 C3 880; Moradi-Shalal v Firemans' 46 C3 287; Foley v Interactive 47 C3 654; Cancino v Farmers 80 CA3 335; Northwestern v Farmers' 76 CA3 1031; InsC 11580(b)(2)]



------------



0518 Voluntary dismissal by a plaintiff in return for the defendant's waiver of any right to costs or attorney fees was not a favorable termination of the action on the merits and thus did not justify subsequent action by the defendant for malicious prosecution.



PENDER v RADIN (Favorable Termination) 23 CA4 1807 [See: Villa v Cole 4 CA4 1327; CCP 437]



------------



0519 In approving the compromise of a minor's claim, the trial court had the power to determine how much of the settlement should be paid to a treating chiropractor, but did not have the power to reduce the chiropractor's bill or determine the chiropractor's right to payment.



GOLDBERG v SUPERIOR COURT (Chiropractor's Fee) 23 CA4 1378 [See: CCP 372; ProbC 3500, 3600, 3601]



------------



0520 REVIEW GRANTED A pre-accident release signed by the minor plaintiff's mother was unenforceable as to the minor because it did not state clearly that it was intended to bind him, and a jury's finding that it was intended to bind the minor did not make it enforceable.



LOPEZ v LEAL (Ambiguous Release) 29 CA4 795 [See: Hohe v SD USD 224 CA3 1559]



------------



0521 Reports to the police of suspected criminal activity are absolutely privileged against liability.



HUNSUCKER v SUNNYVALE HILTON (Wrong Suspect) 23 CA4 1498 [See: Silberg v Anderson 50 C3 205; Williams v Taylor 129 CA3 745; Fenelon v SuperCt 223 CA3 1476]



------------



0522 Government immunity from tort liability for injuries sustained by a prisoner applies to an arrestee as soon s/he is turned over to jail authorities and is no longer free to leave.



TERZIAN v COUNTY (Prisoner's Heart) 24 CA4 78 [See: GovC 815, 844]



------------



0523 An action against a public entity for negligently failing to discover and warn of latent defects in premises was properly presented by a claim that described plaintiff's theory as negligent operation of the premises; a state law making public entities immune from tort liability for negligent inspection of realty is not inconsistent with a federal law setting standards for structural soundness in buildings to which states apply federal rent subsidy funds and is, therefore, not made invalid by the Supremacy Clause of the U.S. Constitution.



STEVENSON v SFHA (Earthquake) 24 CA4 269 [See: CCP 472d; GovC 818, 821.4, 910, 945.4; 42 USC 1437]



------------



0524 If a motorist was insured at the time of an accident the insolvency of his/her insurance carrier more than a year later did not make him/her an uninsured motorist.



STATE FARM v SUPERIOR COURT (UM Arbitration) 23 CA4 1297 [See: CCP 1281.2; InsC 11580.2; Freeman v State Farm 14 C3 473]



------------



0525 A policy containing Uninsured Motorist coverage provisions that were nullified by workers' compensation offset provisions did not offer Uninsured Motorist coverage and so did not trigger the "similar coverage" exclusion of another policy.



PLANET v UNITED (Similar Insurance) 23 CA4 1256 [See: InsC 11580.2; Royal v Cole 13 CA4 880, T/AT 4/93; Lopez v Allstate 14 CA4 1835, T/AT 7/93]

------------



0526 After a trial court continued a case 4 times on its own motion because no judge or courtroom was available for trial, dismissal for failure to bring the case to trial within 5 years was an abuse of discretion.



COE v CITY (Abuse of Discretion) 24 CA4 88 [See: CCP 583.310]



------------



0527 The existence of a settlement agreement prohibiting plaintiff from proceeding with litigation tolled the running of the mandatory 5 year dismissal statute, even though the agreement subsequently became unenforceable because of plaintiff's inability, in spite of reasonable diligence, to comply with a condition of the agreement.



BROWN & BRYANT v HARTFORD (Settlement Toll) 24 CA4 247 [See: CCP 583.310, 583.330, 583.340, 583.360]



------------



0528 An underinsured motorist claim is barred unless, within one year after the accident, the claimant has filed suit against the underinsured motorist, or reached agreement with the claimant's Underinsured Motorist carrier concerning the amount due under the policy, or formally instituted arbitration proceedings against the carrier.



ARRASMITH v STATE FARM (Underinsured S/L) 24 CA4 12 [See: InsC 11580.2]



------------



0529 Even though California Rules of Court 391 requires the party prevailing on a motion to submit a proposed order, the time for filing a notice of appeal begins to run when the court enters its order in the permanent minutes, unless its order specifically directs the submission of a proposed order.



HUGHEY v CITY (Date of Entry) 24 CA4 206 [See: Ca RofC 2, 391]



------------



0530 An order denying judgment on the pleadings is not appealable prior to trial, even though the motion for judgment was based on an assertion of immunity; the Supremacy Clause of the US Constitution does not require a contrary result, even though defendant was an agent of the federal government.



SAMUEL v STEVEDORING SVCS (Appeal Supremacy) 24 CA4 414 [See: CCP 904.1; USConst VI,2]



------------



0531 After completing the first phase of a bifurcated trial, attorneys are not entitled to conduct a new voir dire of the jury.



BLY-MAGEE v BUDGET (Bifurcated Voir Dire) 24 CA4 318 [See: CCP 598]



------------



0532 In an order granting a new trial on the ground that the evidence was insufficient to support the verdict, the trial court's statement that "overwhelming medical evidence was that, had the defendant doctor not been negligent and had proper treatment [been] instituted when it could and should have been, the probabilities are that plaintiff's failure of eyesight would have been forestalled or delayed, if not prevented" was sufficient reference to the evidence to justify the order and its affirmance.



ROMERO v RIGGS (New Trial) 24 CA4 117 [See: CCP 657]



------------



0533 A Hawaii attorney who came to California to appear at the deposition of a client that he was representing in litigation in the Hawaii courts did not thereby make sufficient contact with the state of California to be subject to the jurisdiction of California courts in a subsequent action by the client against the attorney.



EDMUNDS v SUPERIOR COURT (Minimum Contacts) 24 CA4 221 [See: Wolfe v City 217 CA3 541; Sibley v SuperCt 16 C3 442]



------------



0534 The oral stipulation of settlement that the parties made before the court was enforceable, even though the parties intended to reduce it to writing and did not do so, and even though some of its terms would ordinarily have been unenforceable under the Statute of Frauds.



KOHN v JAYMAR-RUBY (Oral Settlement) 23 CA4 1530 [See: CCP 664.6]



------------



0535 A plaintiff was not entitled to recover the costs of preparing to prove a matter that the defendant refused to admit in response to a request for admission if the defendant's subsequent admission made proof unnecessary; the offer of compromise and pre-judgment interest provisions of the CCP and CivC apply to a judgment based on an arbitration award, but not to a judgment equal to the rejected offer of compromise.



WAGY v BROWN (Judgment Equals Offer) 24 CA4 1 [See: CCP 998, 2033; CivC 3291]



------------



0536 A defendant who wishes to establish a right to Witt v Jackson offset for concurrent negligence by plaintiff's employer can do so only by way of defense, unless the employer has already joined in the employee's action against defendant or has sought reimbursement from defendant for WC benefits paid to plaintiff.



DIFKO v SUPERIOR COURT (WC Offset) 24 CA4 126 [See: Witt v Jackson 57 C2 57; Del Monte v SuperCt 127 CA3 1049; CJL v Universal 18 CA4 376]



------------



0537 A primary insurance carrier claiming that coverage under the policy has been exhausted must continue to defend until the court adjudges that coverage has been exhausted, but if the primary carrier subsequently establishes that it continued to defend after coverage had been exhausted, it is entitled to reimbursement from excess carriers.



HARTFORD v SUPERIOR COURT (Exhausted Coverage) 23 CA4 1774 [See: Horace Mann v Barbara B 4 C4 1076; Montrose v SuperCt 6 C4 287]



------------



0538 The issue of whether contracts between a general contractor and 24 subcontractors require the subcontractors to defend the general contractor against claims for construction defects is not appropriate for determination by summary adjudication.



REGAN ROOFING v SUPERIOR COURT (Construction Indemnity) 24 CA4 425 [See: CCP 437]



------------



0539 Under the doctrines of res judicata and equitable indemnity, a determination that a corporate officer is not entitled to indemnity under CorpC 317 does not prevent litigation of the officer's rights under contract or equity theories.



BRANSON v SUN-DIAMOND (Double Indemnity) 24 CA4 327 [See: CorpC 317; CCP 430.10; 1 Pomeroy, Equity Jurisprudence, 5th ed. 1941, The Constituent Parts of Equity, @ 91]



------------



0540 DISAPPROVED The California Supreme Court's decision in Privette, holding that a person who hires an independent contractor is not vicariously liable under the peculiar risk doctrine to the contractor's employees for negligence of the contractor, should be applied retroactively.



OWENS v GIANNETTA (Peculiar Risk Retrospective) 23 CA4 1662 [See: LabC 3600 etseq; Privette v SuperCt 5 C4 689; Woolen v Aerojet 57 C2 407]



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--------------------

*(T/AT II,10 - 6/94)

--------------------

------------



0541 A private, non-profit organization that maintained a standard for the manufacture of pipe and that inspected pipe and published a list of brands of pipe that conformed to its standard owed a duty of reasonable care to plumbing contractors who were likely to rely on its publication.

PACIFIC GEN v IAPMO (Defective Pipe) 24 CA4 1564 [See: CivC 1714; Rowland v Christian 69 C2 108]



------------



0542 DEPUBLISHED Children of a woman with whom defendant psychotherapist had sexual contact were not "direct victims" of defendant's conduct, and therefore were not entitled to recovery for negligently inflicted emotional distress, because there was no pre-existing consensual relationship between them and defendant; the woman's husband might have been a "direct victim," because his express consent to her treatment and tacit consent to payment of the psychotherapist from community assets resulted in a pre-existing consensual relationship; the period of limitations on the husband's claim began to run when he first suspected that defendant was having sexual contact with his wife.



UNDERWOOD v CROY (Amorous Shrink) 25 CA4 281 [See: Molien v Kaiser 27 C3 916; Burgess v SuperCt 2 C4 1064; Marlene F v Affiliated 48 C3 583; Bro v Glaser 22 CA4 1398; CCP 340 etseq]



------------



0543 A former owner of realty has no duty to protect subsequent occupiers against latent defects that existed at the time the former owner relinquished possession and control unless the former owner knew about the defects and concealed them.



LORENZEN-HUGHES v MACELHENNY (Defective Realty) 24 CA4 1684 [See: Preston v Goldman 42 C3d 108]



------------



0544 Interrogation of an employee suspected of theft may be within the employer's proper role and therefore within the exclusive remedy provisions of the workers' compensation system, but false imprisonment of an employee by an employer is outside the employer's proper role and is not within the exclusive remedy provisions of the workers' compensation system.



FERMINO v FEDCO (WC False Imprisonment) 7 C4 701 [See: LabC 3600 etseq, 4553; Shoemaker v Myers 52 C3 1; Cole v Fair Oaks 43 C3 148; Johns-Manville v SuperCt 27 C3 465; Gantt v Sentry 1 C4 1083; Foley v Interactive 47 C3 654]



------------



0545 Under FEHA, a university may not fix a mandatory age for the retirement of tenured faculty members unless the university maintains a policy requiring the rehiring on a year to year basis of retired faculty members who express a desire to continue working and who annually demonstrate their continuing capability of satisfactorily performing employment duties.



DUBINS v REGENTS (Old Professor) 25 CA4 77 [See: GovC 12941, 12942]



------------



0546 An employer who allegedly terminated an employee in violation of public policy is not immune from liability because the employee made material misrepresentations on his employment application 10 years prior to his termination, particularly when the misrepresentations were not discovered by the employer until after it had terminated him.



COOPER v RYKOFF (Gary Cooper) 24 CA4 614 [See: Summers v State Farm 864 F2 700; O'Driscoll v Hercules 745 FS 656; Churchman v Pinkerton's 756 FS 515]



------------



0547 REVIEW GRANTED A landholder who refused to rent to an unmarried couple because of her religious belief that sex outside of marriage is a sin and that if she rented to an unmarried couple she would be a participant in their sin was not liable for discrimination on the basis of marital status under FEHA.



SMITH v CFEH (Unmarried Couple) 25 CA4 251 [See: GovC 12900; Employment Division v Smith 494 US 872]



------------



0548 Plaintiff's fear of a future catastrophe resulting from defendant's storage of airplane fuel did not justify a private action for public nuisance because it was not different in kind from the fear experienced by the general public, and did not justify an action for private nuisance because fear of future harm is not a substantial invasion of the right to use and enjoy realty.



KOLL-IRVINE v COUNTY (Fuel Farm) 24 CA4 1036 [See: Brown v Arbuckle 88 CA2 258; Helix v City 82 CA3 932; County v Carlstrom 196 CA2 485]



------------



0549 There is no absolute right to sever encroaching roots of a neighbor's tree, and a person who does so is not immune from liability for negligence.



BOOSKA v PATEL (Encroaching Roots) 24 CA4 1786 [See: CivC 829, 3514, 1714; Bonde v Bishop 112 CA2 1]



------------



0550 Plaintiff's reliance on defendant's representations concerning coverage in a policy plaintiff was purchasing was not justified because plaintiff had an opportunity to read the policy before being bound by it and did not do so.



HADLAND v NN INVESTORS LIFE (Unread Policy) 24 CA4 1578 [See: Hackethal v National 189 CA3 1102; Moradi-Shalal v Fireman's 46 C3 287]



------------



0551 By repeating to plaintiffs false representations made by the seller of realty without informing plaintiffs that he had not verified those representations, defendant real estate agent committed a breach of fiduciary obligation, which was a constructive fraud, justifying the imposition of benefit of the bargain damages.



SALAHUTDIN v ALCANTARA (Indivisible Parcel) 24 CA4 555 [See: CivC 1709, 3333, 3343]



------------



0552 Damages for breach of warranty in the sale of goods may be determined in any reasonable manner and may include lost profits.



SERIAN v AGRI-SUN (Diseased Peach Trees) 25 CA4 306 [See: Posz v Burchell 209 CA2 324; CommC 2714]



------------



0553 A dance studio is not liable under the theory of respondeat superior for the conduct of an employee - dance instructor, who sexually molested a teen-aged student at the studio; the statute extending the period of limitations for actions based on sexual abuse of children does not apply to an action against an abuser's employer for negligently employing the abuser.



DEBBIE REYNOLDS STUDIOS v SUPERIOR COURT (Respondeat Abuser) 25 CA4 222 [See: CCP 340.1; Clark v Wheat 92 CA3 503; Rodgers v Kemper 50 CA3 608]



------------



0554 A plaintiff who received an award against a defendant and, under the doctrine of respondeat superior, against that defendant's employer, which award was higher than the offer of compromise rejected by the defendant employee but lower than the offer of compromise rejected by the defendant employer, was entitled to collect enhanced costs from the employee but not from the employer.



VASQUEZ-GARCIA v VONS (Better and Worse) 24 CA4 1218 [See: CCP 998; CivC 3291]



------------



0555 An offer of compromise made by defendant to three plaintiffs simultaneously, which offer specified how much would be paid to each plaintiff and did not specifically require simultaneous acceptance by all three plaintiffs was sufficiently unconditional to justify shifting defendant's litigation costs to a plaintiff against whom defendant received judgment.



SANTANTONIO v WESTINGHOUSE (Unconditional Offer) 25 CA4 102 [See: CCP 998]



------------



0556 Reduction of a judgment against non-settling defendants for a settlement already received by plaintiff from other defendants should relate only to economic damages; so, no reduction can be made from the judgment unless both the settlement and the judgment were specific as to the amounts allocated to economic damages.



CONRAD v BALL (Bottle Apportionment) 24 CA4 439 [See: CivC 1431.2; CCP 877; Espinoza v Machonga 9 CA4 268]



------------



0557 A defendant's decision to assert a crossclaim against co-defendants in one case for indemnity arising from a different case should not deprive it of those indemnity rights when the plaintiff settles with the cross-defendants; dismissal of a cross-claim for indemnity following a good faith settlement must be part of a proceeding entirely separate from the good faith settlement hearing held pursuant to CCP 877.



HOUSING v SUPERIOR COURT (No Dismissal) 24 CA4 549 [See: CCP 877.6]



------------



0558 In an attorney malpractice action in which plaintiff alleges that defendant attorney mishandled the settlement of plaintiff's claim against a third party for a particular loss, the collateral sources rule prohibits admission, to establish plaintiff's damages in the malpractice case, of evidence concerning the plaintiff's first party insurance recovery for the same loss, but the plaintiff's first party insurance recovery might be admissible for some other purpose.



NORTON v SUPERIOR COURT (Collateral Source Malpractice) 24 CA4 1750 [See: Helfend v SCRTD 2 C3 1; CCP 2017]



------------



0559 Statements made in connection with a private, contractual arbitration proceeding are immune from liability under the litigation privilege of CivC 47.



MOORE v CONLIFFE (Unofficial Arbitration) 7 C4 634 [See: CivC 47; Silberg v Anderson 50 C3 205; Ribas v Clark 38 C3 355]



------------



0560 The litigation privilege of CivC 47 does not prevent a private association from censuring one of its members for unethical conduct based on false statements made at a judicial or quasi-judicial proceeding.



BUDWIN v AMERICAN PSYCHOLOGICAL ASSN (Shrink Censure) 24 CA4 875 [See: CivC 47]



------------



0561 The high-speed vehicle pursuit policy promulgated by the Los Angeles Police Department sufficiently satisfies statutory requirements to immunize the police department from liability for injuries that result from high-speed vehicle pursuit.



BRUMER v CITY OF LOS ANGELES (Pursuit Policy) 24 CA4 983 [See: VehC 17004; Colvin v City 11 CA4 1270, T/AT 3/93; Payne v City 12 CA4 1738, T/AT 4/93; Berman v Daly City 21 CA4 276, T/AT 3/94]



------------



0562 Repairs do not toll running of the 10-year statute of limitations on latent construction defects unless they were made by the defendant.



A&B v SUPERIOR COURT (Drywall) 25 CA4 349 [See: CCP 337.15]



------------



0563 The 6 month period fixed by the CCP for a motion to vacate dismissal on the ground of excusable neglect is an outside limit on the court's power to vacate and does not eliminate the requirement that the motion be made within a reasonable time after entry of the order of dismissal.



CALDWELL v METHODIST HOSP (Outside Limit) 24 CA4 1521 [See: CCP 583.410, 473]



------------



0564 If appellant's timely attempt to file a notice of appeal was rejected by the clerk because it was not accompanied by the proper fee, the appeal should not be dismissed as untimely.



RAPP v GOLDEN EAGLE (Rejected Notice) 24 CA4 1167 [See: CA RofC 1(c), 10(a), 45(e); PSA v Dowty 144 CA3 491]



------------



0565 A contractor's act of cutting holes in a roof in conformity with erroneous plans and drawings was not an "occurrence" as defined by a policy providing coverage for property damage, and so the expense of resizing the holes was not "property damage" under the policy.



OVERLAND v MARYLAND CAS (Wrong Size) 24 CA4 1491 [See: United v McGuire 229 CA3 1560]



------------



0566 If coverage under an umbrella policy had not yet been triggered when the insurer defended with a reservation of rights under the primary policy, the insurer's failure to specifically reserve its rights under the umbrella policy did not estop it from subsequently denying coverage under the umbrella policy.



STATE FARM v JIORAS (Umbrella Estoppel) 24 CA4 1619 [See: Miller v Elite 100 CA3 739]



------------



0567 In the face of a clause requiring the insurer's consent for assignment of a policy, the insured's sale of all business assets to a successor corporation may transfer a right to the proceeds of a claim existing at the time of the sale, but, in the absence of the insurer's consent, it does not transfer the policy or its coverage.



QUEMETCO v PACIFIC (Consent Clause) 24 CA4 494 [See: Northern v Allied 955 F2 1353; Oliver v USF&G 187 CA3 1510; Penasquitos v SuperCt 53 C3 1180]



------------



0568 Even if its refusal to pay a first party claim was a breach of contract, an insurer was not acting in bad faith if it honestly, albeit erroneously, believed that the statute of limitations had run and that the claim was not covered, so long as reasonable minds could have differed on those issues.



KYLE v UNITED (Reasonable Disagreement) 24 CA4 1632 [See: Gruenberg v Aetna 9 C3 566; Crisci v Security 66 C2 425; Comunale v Traders 50 C2 654]



------------



0569 An insurance company is not the alter-ego of its insured, and so the trial court does not have the power to add it as a party after judgment; a trial court may not impose sanctions upon a defendant or its insurer for choosing to defend a lawsuit rather than settle it.



TRIPLETT v FARMERS (No Sanction) 24 CA4 1415 [See: CCP 187, 128.5; NEC v Hurt 208 CA3 772; Moradi-Shalal v Fireman's 46 C3 287]



------------



0570 A trial court's refusal to award sanctions under CCP 128.5 implies a finding that the action was not frivolous and should not be set aside unless the party seeking sanctions demonstrates an abuse of discretion. <Majority - Sanctions should not be awarded in the absence of subjective bad faith; Dissent - Sanctions should be awarded if the action was objectively frivolous.>



DOLAN v BUENA ENGINEERS (Frivolous Action) 24 CA4 1500 [See: CCP 128.5]



------------



0571 Activities by agents of the State of Oregon performed in California for the purpose of recruiting a California high school student to attend an Oregon state university and play on its basketball team constituted sufficient contacts with the state of California to justify the exercise of jurisdiction by California courts.



OREGON v SUPERIOR COURT (Basketball Recruitment) 24 CA4 1550 [See: CCP 410.10; International Shoe v Washington 326 US 310; Burger King v Rudzewicz 471 US 462]



------------



0572 Out of state service by mail on a corporation is not valid unless the mail is addressed to one of the corporate officers listed in CCP 416.10(b).



DILL v BERQUIST (Corporate Officer) 24 CA4 1426 [See: CCP 425.11, 415.40, 416.10, 583.210, 583.250]



------------



0573 An employee's claim that an employer breached the collective bargaining agreement may be heard by the Superior Court, but a claim against the union for breaching its duty of fair representation by not attempting to enforce the collective bargaining agreement is within the exclusive jurisdiction of the Public Employment Relations Board (PERB).



ANDERSON v CA FACULTY (PERB) 25 CA4 207 [See: GovC 3560 etseq]



--------------------



0574 A compulsory arbitration clause contained in an adhesion contract is not enforceable unless its terms were brought sufficiently within the adherent-party's reasonable expectations by highlighting, bold type, or some other device serving to draw the adherent's attention to it.



BELL v CONGRESS MORTGAGE (Adhesive Arbitration) 24 CA4 1675 [See: Graham v Scissor-Tail 28 C3 807]



------------



0575 A seller of automobiles who maintains dispute resolution procedures does not thereby become immune from liability for civil penalties under the Song-Beverly Consumer Protection Act (i.e., Lemon Law).



JERNIGAN v FORD (Lemon Dispute Resolution) 24 CA4 488 [See: CivC 1790 etseq; Suman v BMW 23 CA4 1, T/AT 4/94]



------------



0576 In business tort litigation, the fact that defendant's attorneys retained as an expert witness an economist who had been interviewed and consulted by plaintiff's attorneys and who in the process received confidential information from plaintiff's attorneys was sufficient to justify recusal of all members of the law firm representing defendant.



SHADOW v SUPERIOR COURT (Same Expert) 24 CA4 1067 [See: County v SuperCt 222 CA3 647]



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--------------------

*(T/AT II,11 - 7/94)

--------------------

------------



0577 Although a contract between a public utility and a municipality required the utility to maintain street lamps, the utility owed to an individual plaintiff injured as a result of a non-functioning street lamp no duty to maintain the street lamp.



WHITE v SO CAL EDISON (Lights Out) 25 CA4 442 [See: CivC 1714; Moch v Rensselaer 247 NY 160]



------------



0578 REVIEW GRANTED Operators of a cruise ship owed a passenger who was injured while ashore and confined to a local clinic no duty to provide or arrange for medical care.



DEROCHE v COMMODORE (Ship's Doctor) 31 CA4 802 [See: Nash v Fifth Amendment 228 CA3 1106; Rainey v Paquet 709 F2 169; Kermarec v Compagnie Generale 358 US 625]



------------



0579 REVIEW DENIED An off duty highway patrol officer who observed wheels fly off a truck traveling near him on the highway and who was struck by the flying wheels while attempting to control traffic and direct the driver of the truck to the shoulder of the road was barred by the firefighter's rule from recovering on a negligence theory against the driver or on any products liability theory against the manufacturers of the truck and wheels.



KELHI v FITZPATRICK (Crazy Wheels) 25 CA4 1149 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Giorgi v PG&E 266 CA2 355; Seibert v SuperCt 18 CA4 394, T/AT 11/94; CivC 1714.9]



------------



0580 A tavern keeper has a common law obligation to exercise reasonable care to protect patrons from attack by other patrons, and statutory sections abolishing "dram shop" liability do not create immunity from liability for breach of this obligation.



CANTWELL v PEPPERMILL (Dram Shop) 25 CA4 1797 [See: Cole v Rush 45 C2 345; Brockett v Kitchen 264 CA2 69; Vesely v Sager 5 C3 153; B&P 25602; CivC 1714]



------------



0581 In the absence of prior incidents of rape or violent crime in the building, lessors of a condominium unit did not owe the tenant a duty to provide physical security measures to protect her against attack and rape by an intruder who entered the condominium unit through a window.



PAMELA W v MILLSOM (Condo Rape) 25 CA4 950 [See: Ann M v Pacific Plaza 6 C4 666]



------------



0582 REVIEW GRANTED There was sufficient evidence to support a jury's verdict that a landlord's failure to provide security was a proximate cause of the attack and rape of a tenant in the building's underground parking lot, but the jury's apportionment of 95% of the fault to the landlord and only 4% and 1% to the rapist and his accomplice was unsupported by the evidence and required a new trial on the issue of apportionment of fault.



PAMELA B v HAYDEN (Parking Lot Rape) 30 CA4 1063 [See: Ann M v Pacific Plaza 6 C4 666; Nola M v USC 16 CA4 421; CCP 1431.2]



------------



0583 The operator of a swap meet at which vendors rented stalls for the sale of goods to the public did not owe tenant-vendors a duty to protect their merchandise against theft.



ROTMAN v MACLIN (Swap Meet) 24 CA4 1709 [See: Royal Neckware v Century City 205 CA3 1146]



------------



0584 If the tort of battery is defined as "intentional, unlawful, harmful contact," the trial court should instruct the jury that, within the context of that definition, contact is unlawful if the plaintiff did not consent to it.



BAROUH v HABERMAN (Love Tap) 26 CA4 40 [See: BAJI 7.50, 7.51, 7.52; Rest 2d Torts 13]



------------



0585 Rhetorical phrases contained in defendant's letter to the editor and published on an op-ed page were so obviously expressions of opinion that the reasonable reader would not have regarded them as assertions of fact and, therefore, they could not be the basis for defamation liability.



RUDNICK v MCMILLAN (Tumbleweed) 25 CA4 1183 [See: Baker v LA Herald Examiner 42 C3 254; NY Times v Sullivan 376 US 254; Gertz v Robert Welch 418 US 323]



------------



0586 Although CivC 47 applies an absolute privilege to statements made in the course of judicial proceedings and to a newspaper's republication of those statements, the privilege does not apply to a litigant's communication to a newspaper of the contents of that litigant's complaint, and such communication may be the basis of defamation liability.



SHAHVAR v SUPERIOR COURT (Media Alert) 25 CA4 653 [See: CivC 47; Silberg v Anderson 50 C3 205; Abraham v Lancaster 217 CA3 796]



------------



0587 Under CivC 43.8, communications to a professional licensing board regarding the qualifications of a medical doctor are absolutely privileged, and cannot lead to liability for malicious prosecution even if made with malice and without probable cause.



JOHNSON v SUPERIOR COURT (Psychologist's Qualifications) 25 CA4 1564 [See: CivC 43.8]



------------



0588 An FCC hearing to determine which of two applicants should be licensed to operate on a particular frequency is not a proceeding against either applicant, and so cannot be the basis of malicious prosecution liability.



STOLZ v WONG (Same Frequency) 25 CA4 1811 [See: 47 USC 301 etseq; Ashbacker v FCC 326 US 327; Sheldon Appel v Albert & Oliker 47 C3 863]



------------



0589 The statute of limitations on an action for malicious prosecution begins to run upon entry of judgment in the underlying proceeding, but its running is tolled upon the filing of a notice of appeal from that judgment, and it begins running again upon the issuance of a remittitur declaring the initial judgment to be final.



BELLOWS v ALIQUOT (Running Again) 25 CA4 426 [See: CCP 340]



------------



0590 REVIEW GRANTED The commencement of an IRS audit does not start the statute of limitations running on an action for negligence by an accountant in completing the taxpayer's return unless it can be shown that the IRS audit was commenced because of that negligence; such a showing is unlikely because the IRS uses secret formulas in deciding whether to audit a return and so the reason for any particular audit usually remains an "IRS mystery."



BOYKIN v COBIN (IRS Audit) 25 CA4 435 [See: CCP 339, 340; Laird v Blacker 2 C4 606]



------------



0591 In an action for professional negligence against a doctor or the manufacturer of a breast implant, the cause of action accrues when plaintiff realizes or reasonably should realize that there is an injury and has reason to suspect that the injury resulted from wrongdoing; accrual does not depend on when plaintiff realizes that a cause of action exists.



GOLDRICH v NATURAL (Migrating Implants) 25 CA4 772 [See: CCP 340; Jolly v Eli Lilly 44 C3 1103]



------------



0592 Plaintiff's complaint, five days after the death of his wife, to a professional licensing board about the conduct of the chiropractor who was treating his wife when she died is evidence that the plaintiff suspected that his wife's death resulted from wrongdoing, so the statute of limitations on his wrongful death action against the chiropractor began running when the complaint was made.



KLEEFELD v SUPERIOR COURT (Chiropractor Discipline) 25 CA4 1680 [See: CCP 340.5]



------------



0593 Plaintiff's awareness that she was experiencing memory lapses associated with electro-shock treatments was sufficient to begin running of the statute of limitations on her action against the practitioner administering the treatments, even though plaintiff was not aware that the memory losses resulted from a stroke caused by the treatments.



MCNALL v SUMMERS (Shock Therapy) 25 CA4 1300 [See: CCP 340.5; Dolan v Borelli 13 CA4 816, T/AT 4/94; Steingart v White 198 CA3 406]



------------



0594 Fraudulent concealment of the defendant's identity tolls the running of the statute of limitations on a defamation action until plaintiff discovers or reasonably should discover the defendant's identity.



BERNSON v BROWNING-FERRIS (Hidden Defamer) 7 C4 926 [See: CCP 340; Jolly v Eli Lilly 44 C3 1103; Autocephalous v Goldberg 717 FS 1374, 917 F2 278]



------------



0595 At the trial of plaintiff's action against his insurer for breach of contract and bad faith in failing to pay his claim following the alleged burglary of oriental rugs which plaintiff held on consignment, it was error for the court to (1) exclude evidence that the consignors of the rugs were unable to document their existence; (2) admit evidence of the insurer's offer to compromise the claim; and (3) refuse to charge that the insurer's reliance on the advice of counsel was a defense to allegations of bad faith.



ZEITOUNIAN v FARMERS (Missing Rugs) 25 CA4 929 [See: EvC 352, 1152; People v Jones 42 C2 219; State Farm v SuperCt 228 CA3 721]



------------



0596 Bad faith by an insurer consists of unreasonable failure to pay a claim and was evidenced by overzealous investigation and other practices designed to find a way to avoid payment, but bad faith does not necessarily rise to the level of malice, oppression, or fraud required for punitive damages liability.



TOMASELLI v TRANSAMERICA (Bad Faith Puni's) 25 CA4 1269 [See: Opsal v United 2 CA4 1197]

------------



0597 After a judgment has been entered for breach of contract, no further contractual obligations exist, so the judgment debtor's only obligation is to pay the judgment, and failure to do so is not a tort.



TOMASELLI v TRANSAMERICA (Bad Faith Puni's II) 25 CA4 1766 [See: White v Western Title 40 C3 870]



------------



0598 If a trial court determines, pursuant to CCP 877.6, that a settlement consisting of a stipulated judgment against defendant and an assignment of defendant's rights against its insurer was made in good faith, the plaintiff, as assignee of defendant's rights, may enforce them by an action against the insurer for bad faith denial of coverage.



ROMAN v UNIGARD (Good Faith Assignment) 26 CA4 177 [See: CCP 877.6; Smith v State Farm 5 CA4 1104; Sanchez v Truck 21 CA4 1778, T/AT 3/94]



------------



0599 When a claim was tendered for defense, the insurer's denial of coverage without asserting limits that would exist if there were coverage did not waive the insurer's right to assert those limits after coverage was determined to exist.



CENTER v FREMONT (Waiver of Limits) 25 CA4 455 [See: Miller v Elite 100 CA3 739]



------------



0600 Even though defendant used advertising to sell acid washed jeans allegedly manufactured by infringing on plaintiff's patent, plaintiff's suit for patent infringement was not a suit for advertising injury, and therefore was not covered by a policy insuring against liability for advertising injury.



GITANO v KEMPER (Acid Washed Jeans) 26 CA4 49 [See: CivC 1646; Bank of the West v SuperCt 2 C4 1254, T/AT 9/92]



------------



0601 A certificate of self-insurance filed by a car rental agency makes the agency's self insurance the primary coverage on a rented vehicle, while the renter's auto liability policy furnishes secondary coverage.



GRAND v INTERINSURANCE EXCH (Whose In First?) 25 CA4 1242 [See: InsC 11580.9]



------------



0602 Although plaintiff's employer was operating under a government contract that required it to investigate possible breaches of security, it was not a government actor when investigating plaintiff's behavior, and plaintiff was, therefore, not entitled to the protections guaranteed by the Fifth Amendment to the US Constitution.



TRW v SUPERIOR COURT (Government Actor) 25 CA4 1834 [See: Burton v Wilmington 365 US 715]



------------



0603 Workers' compensation is the exclusive remedy for employment discrimination based on a job related injury and pre-empts otherwise applicable provisions of FEHA.



LANGRIDGE v OAKLAND USD (Injury Discrimination) 25 CA4 664 [See: GovC 12900 etseq; LabC 3600 etseq; Denney v Universal 10 CA4 1226, T/AT 1/93; Angell v Peterson 21 CA4 981, T/AT 3/94; Usher v American Airlines 20 CA4 1520, T/AT 2/94; Fermino v Fedco 7 C4 701, T/AT 6/94]



------------



0604 No rule of statutory, common law, or constitutional law prohibits the owner of an office building from refusing to rent to persons who are not medical doctors.



ROTH v RHODES (Doctors Only) 25 CA4 530 [See: B&P 16700 etseq; CivC 51 etseq]



------------



0605 In an action against 2 defendants, plaintiff's voluntary dismissal of her complaint against defendant #1 did not prevent defendant #2 from seeking equitable indemnity from defendant #1.



LONG BEACH GPA v HUNT (Grand Prix) 25 CA4 1195 [See: Munoz v Davis 141 CA3 420]



------------



0606 If the parties expressly contracted regarding duties to indemnify, their duties must be interpreted under the law of contracts rather than the law of equitable indemnity.



REGIONAL v SUPERIOR COURT (Express Indemnity) 25 CA4 525 [See: Rossmoor v Pylon 13 C3 622]



------------



0607 DEPUBLISHED A claim for double damages under the Song Beverly Consumer Warranty Act is subject to a 1 year statute of limitations. In a contract for the sale of consumer goods, Song Beverly prohibits enforcement of a term disclaiming liability for incidental and consequential damages.



COLE v SEA RAY (Floating Lemon) 26 CA4 1 [See: CCP 340; CivC 1794]



------------



0608 A judgment of liability following the first phase of a bifurcated trial is not appealable because it is not a final judgment; therefore, after a jury has made a finding of no liability after the first phase of a bifurcated trial, a judgment NOV is also not appealable because it is not a final judgment.



WALTON v MAGNO (Interlocutory Judgment) 25 CA4 1237 [See: CCP 664, 629, 628, 659, 904.1; Herman v Shandor 8 CA3 476; Plaza Tulare v Tradewell 207 CA3 522]



------------



0609 If transmitted after the court has closed for the day, a document filed by fax should be regarded as having been filed on the following court day.



ROSENBERG v SUPERIOR COURT (Fax Filing) 25 CA4 897 [See: CA RofC 2003, 2008, 2005, 2006, 317]



------------



0610 A "patient problem / complaint" form that plaintiff filled out while a patient in the County Hospital did not satisfy the provisions of the GovC notice of claim requirements because it did not indicate that plaintiff was contemplating a claim against the hospital, did not set forth an amount of money that would be demanded, and was not transmitted to any of the persons specified by GovC sections.



WOOD v RIVERSIDE GEN HOSP (Patient Problem) 25 CA4 1113 [See: GovC 900 etseq]



------------



0611 A domestic corporation's designation of the location of its "principal business office" in its annual domestic stock corporation statement filed with the Secretary of State conclusively fixes the corporation's "principal place of business" for purposes of venue.



ROSAS v SUPERIOR COURT (Principal Office) 25 CA4 671 [See: CCP 395.5]



------------



0612 Trial court should not have issued a sanction precluding the use of evidence because it was obtained by plaintiff's attorney as the result of a third person's violation of a protective order issued in another case.



McGINTY v SUPERIOR COURT (Evidence Sanction) 26 CA4 204 [See: Aerojet v Transport 18 CA4 996, T/AT 11/93]



------------



0613 The assignments of a coordination motion judge and a coordination trial judge are two separate proceedings, so even though the same judge has been assigned to both roles, the time to file a peremptory challenge to her/his appointment as coordination trial judge does not begin to run when s/he is assigned as coordination motion judge, but when s/he is assigned as coordination trial judge.



STONE v SUPERIOR COURT (Coordination Challenge) 25 CA4 1144 [See: CCP 170.6, 404, 404.3; CA RofC 1515]



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--------------------

*(T/AT II,12 - 8/94)

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0614 If the likelihood that a third person may act in a particular manner is one of the hazards that makes defendant's conduct negligent, the third person's act does not prevent defendant's negligence from being a proximate cause of the harm that results; if supported by substantial evidence, a jury's apportionment of fault should not be disturbed unless it shocks the conscience.



ROSH v CAVE (The Terminator) 26 CA4 1225 [See: Nola M v USC 16 CA4 421, T/AT 8/93; Pamela B v Hayden 25 CA4 785, T/AT 7/94; Rest2 Torts 449]



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0615 In the absence of physical injury to plaintiff, plaintiff's fear of contracting AIDS is not a recoverable item of damages unless defendant's conduct made it more likely than not that plaintiff would contract AIDS.



HERBERT v REGENTS (Fear of AIDS) 26 CA4 782 [See: Wilson v Irwin 14 CA4 1315, T/AT 6/93; Smith v County 20 CA4 1826, T/AT 2/94; Potter v Firestone 6 C4 965, T/AT 2/94]



------------



0616 The law of admiralty applies to a claim for damage to a recreational vessel in navigable waters and prevents the application of products liability theories to a claim against the manufacturer of the vessel for damage to the vessel itself.



LEWINTER v GENMAR (Hull Of It) 26 CA4 1214 [See: The Plymouth 70 US 20; Foremost v Richardson 457 US 668; Sisson v Ruby 497 US 358; East River v Transamerica 476 US 858; Seely v White 63 C2 9]



------------



0617 A constructive discharge occurs when an employer has actual knowledge of adverse working conditions so intolerable that there is no reasonable alternative for the employee except to quit.



TURNER v ANHEUSER-BUSCH (Constructive Discharge) 7 C4 1238 [See: Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083]



------------



0618 An attorney employed as in-house counsel may sue the former employer for breach of the employment contract as can any other employee; the attorney may sue in tort for retaliatory discharge under the whistleblower theory so long as the attorney's conduct was either mandated or permitted by the rules of ethics.



GENERAL DYNAMICS v SUPERIOR COURT (In House Counsel) 7 C4 1164 [See: Chyten v Lawrence 18 CA4 618, T/AT 11/93; Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083]



------------



0619 REVIEW GRANTED An East Indian from the Punjab can maintain an action for race discrimination.



SANDHU v LOCKHEED (National Origin) 26 CA4 846 [See: GovC 12900 etseq; Manzanares v Safeway 593 F2 968]



------------



0620 REVIEW GRANTED Under general rules of tort law, an employee is acting within the scope of employment when her/his conduct is broadly incidental to the enterprise in which s/he is employed, and this rule should be used in applying GovC sections that require a government agency to defend and indemnify employees against claims of liability for acts performed within the scope of employment.



FARMERS v COUNTY (Jail Guards) 26 CA4 1154 [See: GovC 825, 825.2, 995, 995.2, 996.4; John R v Oakland USD 48 C3 438; Mary M v City 54 C3 202]



------------



0621 Under CivC 1714.10, which requires judicial approval for a civil conspiracy claim against an attorney, the claim has a "reasonable probability of success" if plaintiff can allege a prima facie case.



BURTSCHER v BURTSCHER (Conspiracy Gatekeeper) 26 CA4 720 [See: CivC 1714.10; Hung v Wang 8 CA4 908, T/AT 10/92]



------------



0622 REVIEW GRANTED An attorney's failure to start an action within the statutory period of limitations causes actual damage to the client when it damages the integrity of the client's underlying case.



ADAMS v PAUL (S/L on S/L) 26 CA4 861 [See: CCP 340.6(a); Laird v Blacker 2 C4 606; Finlayson v Sanbrook 10 CA4 1436, T/AT 1/93; Pleasant v Celli 18 CA4 841, T/AT 11/93]



------------



0623 An attorney's failure to advise a client about a time limit on the client's ability to perform a particular act causes actual damage when the time limit expires, preventing the client from performing the act.



FOXBOROUGH v VAN ATTA (Condo Advice) 26 CA4 217 [See: CA CodeRegs 10: 2792.27(a), (b)(4); Laird v Blacker 2 C4 606; CCP 340.6]



------------



0624 REVIEW GRANTED Since a condition of land is abatable if it can be remedied by reasonable means, a court can not determine whether a condition is abatable without evidence of the condition's extent and the cost of remedying it.



MANGINI v AEROJET (Heavy Metal) 26 CA4 760 [See: CCP 338(b); Mangini v Aerojet 230 CA3 1125; Capogeannis v SuperCt 12 CA4 668, T/AT 3/93; Newhall v SuperCt 19 CA4 334, T/AT 12/93; Wilshire v ARCO 20 CA4 732, T/AT 2/94; KFC v Meghrig 23 CA4 1167, T/AT 5/94]



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0625 REHEARING GRANTED In an action under the federal Civil Rights Act based on the claim that a police officer used excessive force, the officer's conduct should be measured against the standard of the reasonable police officer. [Court found, as a matter of law, that the force used was reasonable]



MORENO v COUNTY (Excessive Force) 27 CA4 14 [See: 42 USC 1983; Tennessee v Garner 471 US 1; Graham v Connor 490 US 386]



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0626 City of Corona's police vehicle pursuit policy satisfies statutory requirements, making the City of Corona immune from liability for injuries that occur during high speed vehicle pursuit.



BILLESTER v CITY OF CORONA (Pursuit Policy) 26 CA4 1107 [See: VehC 17004.7; Weiner v City 229 CA3 1203; Colvin v City 11 CA4 1270, T/AT 3/93; Payne v City 12 CA4 1738, T/AT 4/93; Berman v Daly City 21 CA4 276, T/AT 3/94; Brumer v City 24 CA4 983, T/AT 6/94]



------------



0627 Statutory government immunity from liability for injuries that occur during high speed vehicle pursuit applied even though the person being pursued was driving a stolen police vehicle.



BRYANT v COUNTY OF LOS ANGELES (Pursuit Policy) 26 CA4 919 [See: VehC 17004.7; Brumer v City 24 CA4 983]



------------



0628 An action for the wrongful death of plaintiff's child while in a foster home can not be maintained unless plaintiff complies with the filing requirements of the H&SC, regardless of whether plaintiff alleges that defendant was the operator of a foster home.



HILL v NEWKIRK (Foster Care) 26 CA4 1047 [See: H&SC 1527 etseq]



------------



0629 A doctor does not commit a tort by revealing confidential information about a patient to a carrier insuring another doctor whom the patient is suing for malpractice.



HELLER v NORCAL (Medical Disclosure) 8 C4 30 [See: CivC 56 etseq, 47; CA Const I,1; Silberg v Anderson 50 C3 205; Hill v NCAA 7 C4 1]



------------



0630 In a defamation case, a defendant who asserts the common interest privilege has the burden of showing that the defamatory statement was made to a person with whom defendant shared a common interest and was related to the common interest; plaintiff then has the burden of showing that the statement was not made in good faith.



LUNDQUIST v REUSSER (Common Interest Privilege) 7 C4 1193 [See: CivC 47(c); Brown v Kelly 48 C3 711; Snively v Record 185 C 565]



------------



0631 If there was no risk of a judgment against the insured in excess of policy limits, an insurer's refusal to settle a claim, part of which was covered and part of which was not, was not in bad faith.



CAMELOT v SCOTTSDALE (Within Limits) 27 CA4 33 [See: Johansen v Cal State Auto 15 C3 9; Comunale v Traders 50 C2 654]



------------



0632 To avoid violating an obligation to one insured by fulfilling an obligation to another, an insurer does not act in bad faith by rejecting a settlement offer that does not include a complete release of all of its insureds.



STRAUSS v FARMERS (Catch 22) 26 CA4 1017 [See: Heredia v Farmers 228 CA3 1345; Coe v State Farm 66 CA3 981]



------------



0633 Policy provisions that limit liability coverage for a permissive user to $15,000 and that free the insurer of any obligation to defend after paying that limit are valid and enforceable.



HARTFORD v MID-CENTURY (Permissive Use Limit) 26 CA4 1783 [See: Mid-Century v Haynes 218 CA3 737, VehC 17151]



------------



0634 REVIEW GRANTED InsC 11580.2, which provides that a claim under the uninsured motorist coverage in a claimant's policy is barred unless the claimant sues the uninsured motorist within one year does not apply to underinsured motorist claims.



QUINTANO v MERCURY (Underinsured S/L) 26 CA4 1318 [See: InsC 11580.2; Arrasmith v State Farm 24 CA4 12, T/AT 5/94]



------------



0635 The standard cooperation clause in a third party liability policy does not require the insured to waive the attorney-client privilege in coverage disputes with the carrier.



ROCKWELL v SUPERIOR COURT (Cooperation Clause) 26 CA4 1255 [See: EvC 917; Waste v Intern Surplus 144 ILL2 178; SDFCU v Cumis 162 CA3 358; Bituminous v Tonka 140 FRD 381]



------------



0636 Evidence that no prior similar accident has been reported to defendant may be admitted as evidence that the accident was not foreseeable.



BENSON v HONDA (No Priors) 26 CA4 1337 [See: EvC 351; Beauchamp v Los Gatos 273 CA2 20]



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0637 During deliberations, a juror's statement about what his brother-in-law earned in an occupation similar to the one plaintiff hoped to pursue was not misconduct sufficient to impeach the verdict unless other jurors treated the statement as evidence.



ENGLISH v LIN (Brother-in-Law's Salary) 26 CA4 1358 [See: Mesecher v County 9 CA4 1677, T/AT 12/92]



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0638 A psychiatrist's action to declare that, for services as psychiatrist and expert witness, he holds an equitable lien against a tort judgment received by his patient is a proceeding in equity for which there is no right to a jury trial.



SPERBER v ROBINSON (Psychiatrist's Lien) 26 CA4 736 [See: Curnow v Blue Gravel 68 C 262; Grade-Way v Golden Eagle 13 CA4 826]



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0639 After plaintiff served and filed an amended complaint one day late, the trial court could have entertained a motion on notice to strike the amendment as untimely, but should not have granted an ex parte motion to dismiss the case.



GITMED v GMC (Day Late) 26 CA4 824 [See: CCP 581(f)(2); Brown v Brown 169 CA2 54]

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--------------------

*(T/AT III,1 - 9/94)

--------------------

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0640 When re-leasing premises to an existing tenant for admission of the public, a landlord owes third persons a duty to inspect the premises and to remove any dangerous conditions, including vicious animals, that a reasonable inspection would disclose.



PORTILLO v AIASSA (Tenant's Dog) 27 CA4 1128 [See: Uccello v Laudenslayer 44 CA3 504; Burroughs v Ben's 27 C2 449]



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0641 CITED WITH DISAPPROVAL BY CA SC Under the firefighter's rule, persons who negligently cause an accident owe no duty to a tow truck operator called to the scene and subsequently struck by a passing motorist.



HOLLAND v CRUMB (Tow Truck) 27 CA4 1844 [See: Wagner v International Ry 232 NY 176; Giorgi v PG&E 266 CA2 355; Knight v Jewett 3 C4 296]



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0642 REVIEW GRANTED A restaurant that stays open after midnight in a high crime area and that received warnings about violence and gang activity in the vicinity of its parking lot owed patrons a duty to provide security to protect them against attacks in the parking lot; failure to do so was a proximate cause of injuries sustained by a patron attacked in the parking lot.



PHILLIPS v PERILS OF PAULINE (Parking Lot Attack) 27 CA4 1512 [See: Lopez v McDonald's 193 CA3 495; Rowland v Christian 69 C2 108; Nola M v USC 16 CA4 421, T/AT 8/93]



------------



0643 In a malpractice action against an attorney based on the attorney's failure to take prompt action to secure the evidence, the client had the burden of proving that the value of his claim was reduced as a result of the attorney's conduct.



THOMAS v LUSK (Broken Hammer) 27 CA4 1709 [See: Haft v Lone Palm 3 C3 756; McGee v Cessna 139 CA3 179]



------------



0644 A client suing for attorney malpractice that allegedly caused the client to lose a case must prove that without the attorney's negligence the client would have received a judgment and that the judgment would have been collectible.



DIPALMA v SELDMAN (Uncollectible Judgment) 27 CA4 1499 [See: Budd v Nixen 6 C3 195; Campbell v Magana 184 CA2 751]



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0645 A plaintiff may not recover for experiencing a fear of contracting AIDS unless the defendant's conduct made it more likely than not that plaintiff would contract AIDS, or that plaintiff's fear was reasonable and the defendant behaved in an egregious manner.



KERINS v HARTLEY (Fear of Aids) 27 CA4 1062 [See: Potter v Firestone 6 C4 965, T/AT 2/94; Herbert v Regents 26 CA4 782, T/AT 8/94]



------------



0646 A municipality is immune from liability for injury sustained by a plaintiff while engaging in hazardous recreational activity (including "tree rope swinging"), so long as the injury resulted from a risk that, judged by an objective standard, was inherent in the activity.



PEREZ v CITY OF LA (Tree Rope Swinging) 27 CA4 1380 [See: GovC 831.7(b); DeVito v State 202 CA3 264]



------------



0647 Public entities and their employees are not immune from liability for non-discretionary acts, and conduct mandated by statute, rule, or regulation is non-discretionary; a jury's patently improper apportionment of fault (i.e., 1% to a person who intentionally injured the plaintiff, and 99% to a public entity that failed to supervise that person) should be reversed and remanded for re-trial on the issue of apportionment only.



SCOTT v COUNTY (Non-Visitation) 27 CA4 125 [See: GovC 815.2, 815.6, 820.2, 821.6; CCP 1431.2; DSS Reg 30-342; Johnson v State 69 C2 782; Weidenfeller v Star & Garter 1 CA4 1; Pamela B v Hayden 25 CA4 785, T/AT 7/94; Rosh v Cave 27 CA4 125, T/AT 8/94]



------------



0648 MICRA limits apply in an action brought by a party seeking equitable indemnity from a health care provider whose negligence caused an injury for which the party seeking indemnity was obligated to pay.



WESTERN SS v SAN PEDRO PENIN HOSP (Cruise Ship MICRA) 8 C4 100 [See: CivC 3333.2]



------------

0649 MICRA applies to an action against a health care provider based on allegations that, as part of a conspiracy with workers' compensation carriers and motivated by a desire for personal enrichment, the defendant made fraudulent statements about the nature and severity of plaintiff's injury.



DAVIS v SUPERIOR COURT (WC Conspiracy) 27 CA 4 623 [See: CCP 425.13; Central Pathology v SuperCt 3 C4 181]



------------



0650 The maximum period of limitations for commencing a medical malpractice action is three years, and this period cannot be extended except in cases of fraud, intentional concealment, or the presence of a non-therapeutic foreign body in the plaintiff's person.



REWALD v SAN PEDRO PENIN HOSP (Outside Limit) 27 CA4 480 [See: CCP 340.5, 364; Woods v Young 53 C3 315]



------------



0651 A defendant who, while helping his daughter remove her chattels from the plaintiff's home, also removed the plaintiff's chattels in the belief that they were his daughter's, did not thereby commit conversion, and a lawsuit against him for conversion was sufficiently frivolous to justify the imposition of substantial sanctions for maintaining the suit and appealing its dismissal.



SIMONIAN v PATTERSON (Unrequited Conversion) 27 CA4 773 [See: Emmert v United 14 CA2 1; George v Bekins 33 C2 834; Carrey v Boyes 245 CA2 618; Zaslow v Kroenert 29 C2 541]



------------



0652 REVIEW GRANTED Violation of the Constitutional right to equal protection is not a tort; violation of the Constitutional right to due process is a tort only if the violation was committed in carrying out official policy, and, even then, damages for emotional distress are not recoverable in the absence of a physical injury.



BONNER v CITY (Homeless Rights) 27 CA4 1541 [See: CA Const I,7; Rockhouse v Town 127 NH 593]



------------



0653 A party who asserted several causes of action against another party, some of which terminated in favor of the person who asserted them, may be liable for malicious prosecution of the causes of action that did not terminate in favor of the party who asserted them.



TABAZ v CAL FED (Final Termination) 27 CA4 789 [See: Crowley v Katleman 16 CA4 1, T/AT 8/93; Lackner v La Croix 25 C3 747; Singleton v Perry 45 C2 489]



------------



0654 Interference with the plaintiff's contract rights and prospective business advantage is privileged if the defendant's conduct was justified; in determining whether the defendant's conduct was justified, defendant's motivation is one of several factors to be considered.



SAUNDERS v SUPERIOR COURT (Stenographer Conspiracy) 27 CA4 832 [See: PG&E v Bear 50 C3 1118; B&P 12700, 8025]



------------



0655 A party moving to dismiss a claim under the anti-SLAPP statute has the burden of establishing that the claim arose from an act in furtherance of the moving party's right of petition or free speech in connection with a public issue, whereupon the party resisting the motion has the burden of establishing that the claim has a reasonable probability of success, which requires a showing that the claimant can make out a prima facie case.



WILCOX v SUPERIOR COURT (SLAPP a Reporter) 27 CA4 809 [See: CCP 425.16; Hung v Wang 8 CA4 908, T/AT 10/92]



------------



0656 A plaintiff suing for loan discrimination has the burden of introducing evidence that creates an inference of discrimination and if the defendant offers evidence of a non-discriminatory reason for its conduct, there is a triable issue of fact.



BARBER v RANCHO (Loan Discrimination) 26 CA4 1819 [See: 42 USC 1982, 3601 etseq; 15 USC 1691 etseq; Texas v Burdine 450 US 248; Phiffer v Proud Parrot 648 F2 548]



------------



0657 FEHA creates the exclusive remedy for employment discrimination on the basis of age.



JENNINGS v MARRALLE (FEHA Exclusive) 8 C4 121 [See: GovC 12900 etseq; Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083]



------------



0658 REVIEW GRANTED Although the ordinary comprehensive general liability (CGL) policy covers for personal injury it does not cover conduct that causes economic loss, so the CGL carrier has no obligation to defend its insured against a suit for economic loss, even if the complaint contains an additional claim for parasitic emotional and/or physical distress.



WALLER v TRUCK (Emotional Business) 27 CA4 674 [See: Chatton v NU 10 CA4 846, T/AT 1/93; McLaughlin v NU 23 CA4 1132, T/AT 3/94]



------------



0659 A policy insuring an attorney against liability arising from professional services rendered to others does not obligate the carrier to defend a suit for malicious prosecution brought against the attorney as the result of a lawsuit the attorney had previously brought in his own behalf.



JOHNSON v FIRST STATE (Malicious Prosecution Coverage) 27 CA4 1079 [See: Transamerica v Sayble 193 CA3 1562]



------------



0660 A CGL policy's coverage for "infringement of title" protects against liability for claims based on the confusion of names or designations, not for claims based on patent infringement.



CLARY v UNION (Infringement of Title) 27 CA4 1410 [See: Gitano v Kemper 26 CA4 49, T/AT 8/94]



------------



0661 An uncontested hearing before the court, in which liability and damages were determined following the introduction of evidence, satisfied the "actual trial" requirement of InsC 11580, permitting the successful plaintiff to bring action directly against the defendant's carrier for payment of the judgment issued as a result of the hearing.



NATIONAL UNION v LYNETTE C (Actual Trial) 27 CA4 1434 [See: InsC 11580(b)(2); Xebec v NU 12 CA4 501; Lipson v Jordache 9 CA4 151]



------------



0662 When a plaintiff is pursuing one of several possible remedies in a reasonable attempt to minimize losses, the statute of limitations on the other available remedies may be equitably tolled, so long as the tolling does not prejudice a defendant; in determining when plaintiff discovered or should have discovered an injury, the knowledge of plaintiff's attorney is imputed to plaintiff.



STALBERG v WESTERN TITLE (Slander of Title) 27 CA4 925 [See: Gudger v Manton 21 C2 537; CCP 338(g); Prudential-LMI v SuperCt 51 C3 674; Mitchell v Howard Mem 6 CA4 1396]



------------



0663 The Statute of Limitations on non-disclosure by a real estate broker does not apply to an implied contractual indemnity action brought by the broker's client, and the trial court's belief that it did invalidates the courts conclusion in a good faith settlement hearing under CCP 877.6.



WEST v SUPERIOR COURT (Broker Indemnity) 27 CA4 1625 [See: CivC 2079.4; CCP 877.6; Tech-Bilt v Woodward-Clyde 38 C3 488]



------------



0664 An amended complaint alleging wrongful termination cannot relate back to a time when the plaintiff was still employed by the defendant.



LEE v BANK (Not Fired Yet) 27 CA4 197 [See: CCP 312; Prudential-LMI v SuperCt 51 C3 674; Honig v Financial 6 CA4 960]



------------



0665 An order awarding costs to the prevailing party is not a judgment, so even if the losing party's failure to timely move to tax costs resulted from attorney neglect, the mandatory relief provisions of CCP 473 do not apply.



DOUGLAS v WILLIS (No Judgment) 27 CA4 287 [See: CCP 473; Ayala v Southwest 7 CA4 40]



------------



0666 A defendant's offer of compromise satisfied the requirements of CCP 998, even though it required plaintiff to execute a general release as well as a request for voluntary dismissal, and plaintiff's rejection of the offer justified the award of enhanced costs to defendant following nonsuit, including the fees of experts who never testified but who were potential witnesses.



GOODSTEIN v BANK (Refusal to Dismiss) 27 CA4 899 [See: CCP 998, 1031, 1032; Valentino v Elliott 201 CA3 692]



------------



0667 In determining whether a settlement was made in good faith, it is proper for the trial court to consider the worth of the settling defendant and the possibility of a gap in its insurance coverage.



NORTH CTY. v TOUCHSTONE (Settlement Value) 27 CA4 1085 [See: CCP 877, 877.6; Tech-Bilt v Woodward-Clyde 38 C3 488]



------------



0668 Although the boilerplate language of a general release included "all persons" among the parties released, extrinsic evidence created a triable issue as to whether the parties intended to release an unnamed negligent driver who caused the harm.



APPLETON v WAESSIL (Ambiguous Release) 27 CA4 551 [See: CCP 877(a); GMC v SuperCt 12 CA4 435; Lama v Comcast 14 CA4 59]



------------



0669 If statements made in the course of mediation are inadmissible under EvC 1152.5, statements about the existence and terms of the settlement reached are also inadmissible.



RYAN v GARCIA (Silent Settlement) 27 CA4 1006 [See: EvC 1152.5]

------------



0670 A local court rule limiting the amount of attorney fees that can be awarded is in conflict with a state statute granting courts the discretion to award "reasonable attorney fees" in particular cases and, therefore, is inapplicable.



CORTEZ v BOOTSMA (Court Rule Conflict) 27 CA4 935 [See: LabC 3709; SD SuperCt Rules 6.1; Lang v SuperCt 153 CA3 510]



------------



0671 A treating health care practitioner who testifies at a deposition is entitled to expert witness fees for giving opinions, but not for testifying as to facts; questions about the diagnosis and prognosis formed by the expert at the time of treatment do not call for opinion testimony and do not entitle the practitioner to expert witness fees.



BRUN v BAILEY (Percipient Expert) 27 CA4 641 [See: McClenahan v Keyes 188 C 574; Bureau v Cossette 44 CA3Supp 1; CCP 2034(i)(2)]



------------



0672 Following an order changing venue, the court to which the case is transferred has no jurisdiction until it actually receives the file, and a voluntary dismissal delivered to that court has no effect until it is actually entered into the file.



FOODMAKER v VONS (Not Yet) 27 CA4 473 [See: CCP 581; Hauptman v Heebner 34 CA2 600]



------------



0673 An agreement to arbitrate any dispute concerning the interpretation or enforcement of an employment contract required binding arbitration of claims of wrongful termination in violation of public policy and breach of the implied covenant of good faith and fair dealing.



VIANNA v DOCTORS' MGMT (Termination Arbitration) 27 CA4 1186 [See: CCP 1281.2; Moncharsh v Heily & Blase 3 C4 1; Transportation v SCRTD 7 CA4 804]



------------



0674 REHEARING GRANTED A secured lender's purchase of property by full credit bid at a nonjudicial foreclosure sale does not prevent that lender from maintaining a fraud action against parties who fraudulently procured the loan.



ALLIANCE v ROTHWELL (Full Credit Bid) 27 CA4 218 [See: Western v Sawyer 10 CA4 1615 GN Mortgage v Fidelity 21 CA4 1802]



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--------------------

*(T/AT III,2 - 10/94)

--------------------

------------



0675 Because a claimant and the third party insurer with which s/he is negotiating were not in a pre-existing consensual relationship, the insurer owes the claimant no duty to act reasonably to prevent emotional distress; in any given set of circumstances, unless such a duty has specifically been recognized by precedent, a plaintiff seeking recovery for negligently inflicted emotional distress has the burden of showing policy reasons why such a duty should be recognized. [Note strong dissenting opinion]



KRUPNICK v HARTFORD (Negligent Settlement) 28 CA4 185 [See: Dillon v Legg 68 C2 728; Molien v Kaiser 27 C3 916]



------------



0676 The CA Dept of Justice has a mandatory duty under PenC 12000 etseq to examine certain records to determine whether a prospective handgun purchaser has been confined as part of specified mental health programs.



BRAMAN v STATE (Suicidal Purchaser) 28 CA4 344 [See: GovC 815.6; W&IC 8100, 8103; PenC 12000 etseq; Brenneman v State 208 CA3 812; Gray v State 207 CA3 151]



------------



0677 A participant in a college discus throwing class does not assume the risk that another class member will throw the discus without first looking at the target area.



YANCEY v SUPERIOR COURT (Discus Thrower) 28 CA4 558 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92]



------------



0678 To establish that plaintiff's mesothelioma (i.e., asbestos-related disease) was caused by prolonged contact with asbestos in defendant's product, plaintiff at least must prove that the product was in the area occupied by plaintiff and that plaintiff was probably in prolonged contact with it.



DUMIN v OWENS-CORNING (No Contact) 28 CA4 650 [See: Hawaii Federal Asbestos Cases 960 F2 806; Summers v Tice 33 C2 80]



------------



0679 If the narrowness of a 7' ingress easement made a parcel of realty worthless, an abstractor's negligence in describing it as a 15' ingress easement may have caused the plaintiff to invest in worthless realty, but did not cause the realty to be worthless; so the abstractor should be liable for the sum invested by the plaintiff, but not for the difference between the value of the realty and the value that it would have had with a 15' easement.



BARTHELS v SANTA BARBARA TITLE (No Access) 28 CA4 674 [See: Garton v Title 106 CA3 365]



------------



0680 The statute of limitations on a claim for damage resulting from an abstractor's negligent failure to discover and inform plaintiff of the existence of an easement over realty purchased by plaintiff began to run when plaintiff discovered or reasonably should have discovered the existence of the easement.



CROCKER v TRANSAMERICA (Tidelands) 27 CA4 1722 [See: CCP 339; Wilkinson v Rives 116 CA3 641]



------------



0681 Denying in bad faith that a contract exists is not a tort unless there is a special relationship between the parties satisfying the requirements of Foley and the denial occurs outside the context of performance. <Note dissent.>



FREEMAN v BELCHER (Denial of Contract) 28 CA4 282 [See: Comunale v Traders 50 C2 654; Seaman's v Standard Oil 36 C3 752; Foley v Interactive 47 C3 654]



------------



0682 If the claimant is a mentally incapacitated adult, the time to file a claim against a public entity ordinarily is not tolled while the claimant has a conservator, but is tolled if the claimant's conservator is the public guardian.



KAGY v NAPA STATE HOSP (Swallowed Pencil) 28 CA4 1 [See: GovC 911.6(c), 945.4, 911.2, 911.4(a), 946.6(a); Hernandez v County 42 C3 1020; ProbC 2351(a), 2353(a), 2462]



------------



0683 A public entity enjoys statutory immunity from liability for injuries resulting from dangerous conditions of roads and easements used for access to recreation and for trails used for recreation.



ARMENIO v COUNTY (Recreational Trails) 28 CA4 413 [See: GovC 831.4; Giannuzzi v State 17 CA4 462, T/AT 8/93]



------------



0684 After foreclosure, the anti-deficiency statute does not prevent actions against the defaulting party on tort theories, including bad faith waste, fraud, and conversion of rents.



EVANS v CALIFORNIA TRAILER COURT (Anti Deficiency) 28 CA4 540 [See: CCP 580b, 580d; Cornelison v Kornbluth 15 C3 590]



------------



0685 In an action against former employees for damage resulting from their dishonest acts, the collateral sources rule prevents consideration of payments received by plaintiff under a policy insuring it against losses resulting from employee dishonesty.



PACIFIC G&E v SUPERIOR COURT (Employee Dishonesty) 28 CA4 174 [See: Anheuser-Busch v Starley 28 C2 347; Helfend v SCRT 2 C3 1]



------------



0686 A Probate Court order approving the settlement of a minor's claim and awarding a fee to the minor's attorney is not the result of an adversary proceeding and, therefore, is not res judicata in a subsequent action by the minor against the attorney based on an allegation that the attorney charged excessive fees; attorney malpractice may consist of self-dealing to the detriment of a client by charging an excessive fee.



SCHULTZ v HARNEY (MICRA Waiver) 27 CA4 1611 [See: B&PC 6146; ProbC 3600 etseq; Fineberg v Harney & Moore 207 CA3 1049; Estate of Charters 46 C2 227; Goddard v Security Title 14 C2 47]



------------



0687 In an action for credit discrimination, once plaintiff established an inference that the denial of credit was based on race discrimination, defendant had the burden of proving a non-discriminatory reason for denying credit to plaintiff, and the jury's conclusion that defendant's explanation was a pretext correctly resulted in judgment for plaintiff, even though the jury did not believe that defendant's conduct was motivated by race discrimination.



GREEN v RANCHO (Hot Potato) 28 CA4 686 [See: Barber v Rancho 26 CA4 1819, T/AT 9/94]



------------



0688 REVIEW GRANTED Sections of the Public Utilities Code providing that a trucking company's liability insurance cannot be canceled without notice to the Public Utilities Commission do not prevent coverage from terminating upon the expiration of the policy term.



TRANSAMERICA v TAB (Expiration) 28 CA4 157 [See: PUC 3631 etseq; Fireman's v Allstate 234 CA3 1154]



------------



0689 Under an insurance agreement providing coverage for an occurrence or accident resulting in unexpected and unintended damage, the Joint Powers Insurance Authority was not required to defend a lawsuit based on the claim that the insured city deliberately interfered with plaintiff's constitutional rights and economic advantage by passing an anti-noise ordinance designed to put plaintiff out of business.



CITY v SC JOINT POWERS INS AUTH (Anti-Noise) 28 CA4 701 [See: InsC 533; Devin v United 6 CA4 1149; Giddings v Industrial 112 CA3 213; Montrose v SuperCt 6 C4 287, T/AT 1/94; Dykstra v Foremost 14 CA4 361, T/AT 5/93]



------------



0690 A claim for pollution that occurred over a long period of time is not a claim for liability caused by a "sudden event," and if the policy excludes all but sudden events, the carrier is entitled to summary judgment in a coverage dispute unless the insured offers evidence raising a triable issue about whether sudden events caused some of the pollution.



AMERICAN STATES INS v SUPERIOR COURT (Spilled Oil) 28 CA4 399 [See: Montrose v Super Ct 6 C4 287, T/AT 1/94; ACL v Northbrook 17 CA4 1773, T/AT 11/93; Shell v Winterthur 12 CA4 715, T/AT 3/93; Smith v Hughes 22 F3 1432]



------------



0691 DEPUBLISHED Even though a "no action" clause in a liability policy prevents the insured from suing the insurer for failing to settle unless the amount of the insured's liability has been determined by trial, an insurer cannot avail itself of this clause unless it has fulfilled its obligation to defend, including the obligation to furnish independent counsel when defending under a reservation of rights.



VILLICANA v EVANSTON (No Action) 28 CA4 631 [See: Doser v Middlesex 101 CA3 883; Finkelstein v 20th Century 11 CA4 926; Clark v Bellefonte 113 CA3 326; Diamond v National 227 CA3 563; SD Federal v Cumis 162 CA3 358; CivC 2860]



------------



0692 A default judgment on one of the plaintiff's causes of action can not exceed the amount prayed for in that particular cause of action and is not saved by the fact that it does not exceed the aggregate amount prayed for in plaintiff's complaint.



OSTLING v LORING (Manzanita) 27 CA4 1731 [See: CivC 3346; CCP 585; Becker v SPV 27 C3 489]



------------



0693 A plaintiff in intervention cannot be liable for costs incurred by the other party prior to filing the complaint in intervention.



GARCIA v HYSTER (Prior Costs) 28 CA4 724 [See: CCP 1032]



------------



0694 After defendant engaged in discovery abuses that necessitated 15 court hearings, involved disobedience to 50 court-ordered requests for discovery, and led to repeated warnings and monetary sanctions, the imposition of issue and evidence sanctions preventing defendant from proving freedom from liability was not an abuse of the trial court's discretion.



JOHNSON v PRATT (Terminal Sanctions) 28 CA4 613 [See: CCP 473; Caryl Richards v SuperCt 188 CA2 300]



------------



0695 An LA County local court rule that started the time for filing an appeal upon service of a "Notice of Ruling" was inconsistent with CA Rules of Court Rule 122, which starts the time upon service of a "Notice of Entry of Judgment or Appealable Order" and is, therefore, invalid.



20th CENTURY v SUPERIOR COURT (Rule Conflict) 28 CA4 666 [See: CA RofC 122; Hollister v Rico 15 C3 660]



------------



0696 A plaintiff who seeks judicial relief against an organization of which s/he is a member must first invoke and exhaust all remedies provided by that organization.



PEACE v ST FRANCIS MED CTR (Exhaustion of Remedies) 28 CA4 454 [See: Holderby v Internat Union 45 C2 843; Westlake v SuperCt 17 C3 465]



------------

--------------------

*(T/AT III,3 - 11/94)

--------------------

------------



0697 The operator of a convenience store, who did not use a building plan that exposed customers to the risk of being struck by vehicles in the parking lot and who had no experience of prior accidents involving vehicles jumping concrete wheel stops and 6 inch curbs while being parked, had no duty to take extraordinary measures to protect customers against the risk of such occurrences.



JEFFERSON v QWIK KORNER (Curb Jumper) 28 CA4 990 [See: CivC 1714; Rowland v Christian 69 C2 108; Ballard v Uribe 41 C3 5641]



------------



0698 The risk that defendants' adult son would accidentally shoot someone while intoxicated might have been foreseeable to defendants, who rented him a home and who knew that he had a drinking problem and kept firearms, but, in the absence of knowledge that he had previously acted irresponsibly with firearms while intoxicated, was not sufficiently foreseeable to result in the imposition on defendants of a duty to protect plaintiff against it.



STURGEON v CURNUTT (Alcoholic Tenant) 29 CA4 301 [See: Todd v Dow 19 CA4 253; Portillo v Aiassa 27 CA4 1128; Uccello v Laudenslayer 44 CA3 504]



------------



0699 Unless defendants knew or should have known that Lyme-disease-carrying ticks were in the area, they had no duty to warn plaintiff about the risk of Lyme disease before allowing their dog to sit on plaintiff's lap.



BUTCHER v GAY (Lyme Disease) 29 CA4 388 [See: Brunelle v Signore 215 CA3 122; Rowland v Christian 69 C2 108]



------------



0700 Apart from the duty imposed by statute, a public utility has no duty to mark on pavement the location of underground facilities.



CHAVEZ v SO CAL EDISON (Missing Mark) 28 CA4 982 [See: GovC 4216 etseq]



------------



0701 The relationship of a young plaintiff trying out for a professional baseball team and team officials upon whom he relied for advice about whether to participate after experiencing a physical problem does not justify the conclusion that the officials owed no duty of reasonable care, and so the plaintiff's action is not barred by primary assumption of the risk.



WATTENBARGER v CINCINNATI REDS (Baseball Tryout) 28 CA4 746 [See: Ratcliffe v SD Baseball Club 27 CA2 733; Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339 ]



------------



0702 In an action by a privately employed plaintiff whose employment duties include occasional firefighting, the firefighter's rule does not prevent recovery against a defendant other than his employer for injuries sustained in a fire.



NEIGHBARGER v IRWIN (Firefighter's Rule) 8 C4 532 [See: Giorgi v PG&E 266 CA2 355; Li v Yellow Cab 13 C3 804; Knight v Jewett 3 C4 296, T/AT 10/92; Walters v Sloan 20 C3 199; Hubbard v Boelt 28 C3 480; Holland v Crumb 26 CA4 1844, T/AT 9/94]



------------



0703 In the trial of a strict products liability claim, if the product is within the ordinary consumer's range of experience, it is appropriate for the trial court to define "product defect" in terms of reasonable consumer expectation; if the product is only likely to be within the experience of a special group of consumers, it may still be appropriate to use that definition, with the jury receiving guidance from expert witnesses about what a reasonable member of the special group would expect; however, if there is not even a special group of consumers who are likely to have experience regarding the product or accident, it is not appropriate to define "product defect" in such terms. Trial court errors should not result in reversal unless they are likely to have affected the outcome of the trial, and this must be determined on a case-by-case basis rather than by reference to any notion or doctrine of "inherent prejudice."



SOULE v GMC (Toe Pan) 8 C4 548 [See: Greenman v Yuba 59 C2 57; REST(2) Torts 402A; Cronin v Olson 8 C3 121; Barker v Lull 20 C3 413; BAJI 9.00.5; People v Cahill 5 C4 478]



------------



0704 In hamburger meat, a bone fragment one eighth of an inch thick is not a defect; the presence of such a bone fragment does not justify an inference of negligence under the doctrine of res ipsa loquitur.



FORD v MILLER (Bone Burger) 28 CA4 1196 [See: Goetten v Owl 6 C2 683; Mix v Ingersoll 6 C2 674; Mexicali Rose v SuperCt 1 C4 617; Greenman v Yuba Power Products 59 C2 57]



------------



0705 REVIEW DENIED By establishing standards for intraocular lenses, the federal Food, Drug, and Cosmetics Act pre-empts state law and, therefore, requires dismissal of plaintiff's products liability causes of action for negligence and strict liability in tort, but does not require dismissal of causes of action for negligence per se, misrepresentation, breach of express warranty, or breach of implied warranty of fitness for the buyer's particular purpose.



EVRAETS v INTERMEDICS (Intraocular Lens) 29 CA4 779 [See: 21 USC 360 etseq; Cipollone v Liggett 112 SCt 2608; Erie v Tompkins 304 US 64; Slater v Optical 961 F2 1330]



------------



0706 When the Superior Court is trying a case under federal maritime law, the federal rule that reduces a non settling tortfeasor's liability on the basis of apportionment of fault pre-empts California statute, which bases the reduction on the actual value received by plaintiff.



HUTCHINS v JUNEAU (Maritime Apportionment) 28 CA4 493 [See: CCP 877.6; McDermott v Amclyde 128 LEd2 148; Offshore v Tallentire 477 US 207]



------------



0707 In a case tried under the federal Longshore Act, federal law does not pre-empt California's law of comparative negligence or the application of Proposition 51.



HERNANDEZ v BADGER (Headache Ball) 28 CA4 1791 [See: 33 USC 905; CivC 1431.2; DaFonte v Up-Right 2 C4 593; Edmonds v Compagnie Generale 443 US 256]



------------



0708 In an action for damages resulting from the alleged mishandling of a credit report, the federal Fair Credit Reporting Act, which does not provide for attorney fees to the prevailing party, does not pre-empt provisions of California's Consumer Credit Reporting Act, which permit attorney fees.



GOMON v TRW (Credit Report) 28 CA4 1161 [See: CivC 1785.1 etseq; 15 USC 1681 etseq; Ley v Boron 419 FS 1240; Hiemstra v TRW 195 CA3 1629]



------------



0709 Plaintiff's admission that he did not lean on a roof truss prior to falling makes it impossible for plaintiff to establish that any defect in the truss was a cause of his fall.



CALDERON v ESCONDIDO ROOF TRUSS CO (Defective Truss) 29 CA4 42 [See: Chern v BofA 15 C3 866; Pena v Douthitt Steel 179 CA3 924; Advanced Micro v Great American 199 CA3 791]



------------



0710 REVIEW GRANTED An ultrasound technician who sexually abused plaintiff in the guise of performing a medical procedure on her might have been acting in the scope of employment, making the hospital that employed him vicariously liable for his act.



MORIN v HENRY MAYO NEWHALL MEM HOSP (Ultrasonic Abuse) 29 CA4 473 [See: Mary M v City 54 C3 202; John R v Oakland USD 48 C3 438]



------------



0711 After making statements to plaintiff accusing him of theft, defendant is not liable for plaintiff's repetition of those statements to fellow employees for the purpose of garnering their support.



DAVIS v CONSOLIDATED (Self Publication) 29 CA4 354 [See: Shoemaker v Friedberg 80 CA2 911; McKinney v County 110 CA3 787; Live Oak v Cohagan 234 CA3 1277]



------------



0712 A public figure suing a government entity for defamation must establish "actual malice" as required by Sullivan v NY Times.



NADEL v REGENTS (People's Park) 28 CA4 1251 [See: Bromage v Prosser 107 EngRep 1051; NY Times v Sullivan 376 US 254; Curtis v Butts 388 US 130; Gertz v Robert Welch 418 US 323; Hutchinson v Proxmire 443 US 111; Miller v Nestande 192 CA3 191]



------------



0713 Under California's Privacy Act, a conversation is confidential if either party reasonably expected it to be and even though one party knows that the other may repeat portions of it; recording a confidential conversation is a violation of the Act even if the person recording it is a participant in the conversation and does not publish the recording.



COULTER v B OF A (Amateur Sleuth) 28 CA4 923 [See: Pen 630 etseq; Ribas v Clark 38 C3 355; Frio v SuperCt 203 CA3 1480; People v Suite 101 CA3 680; Warden v Kahn 99 CA3 805; Forest E Olson v SuperCt 63 CA3 188]



------------



0714 DEPUBLISHED A plaintiff may maintain a tort action against a former employer for damages resulting from defendant's fraudulently inducing plaintiff to accept the employment; a common law action, distinct from and in addition to remedies under FEHA, for employment discrimination based on age may be maintained against a defendant who employs more than 4 employees.



BROOKS v BELL (S&L Termination) 29 CA4 565 [See: Hunter v Up-Right 6 C4 1174; Jennings v Marralle 8 C4 121; Foley v Interactive 47 C3 654; Rojo v Kliger 52 C3 65; Gantt v Sentry 1 C4 1083; GovC 12900 etseq; 12 CFR 563.39; 12 USC 1461]



------------



0715 Workers' compensation is the exclusive remedy in a claim by an employee against his/her employer for injuries inflicted by third party assailants as a result of the employer's failure to provide adequate security.



ARENDELL v AUTO PARTS CLUB (WC Security) 29 CA4 1261 [See: Fermino v Fedco 7 C4 701; LabC 4553]



------------



0716 The existence and enforcement by public officials of laws regulating swimming pool safety does not make a privately owned swimming pool public property for purposes of government tort liability; liability under the federal Civil Rights Act requires a conscious decision to violate constitutional rights, and, even then, a public entity is not vicariously liable for acts of public employees unless they were carrying out official policy.



AAITUI v GRANDE (Public Pool) 29 CA4 1369 [See: GovC 835, 830; Low v City 7 CA3 826; 42 USC 1983]



------------



0717 A public entity and its employees are immune from liability to a crime witness resulting from statements made during the investigation of the crime.



AMYLOU R v COUNTY OF RIVERSIDE (Persecuted Victim) 28 CA4 1205 [See: GovC 815.2(b), 821.6; Kemmerer v County 200 CA3 1426; Stearns v County 275 CA2 134; Jenkins v County 212 CA3 278; Alicia T v County 222 CA3 869]



------------



0718 In a bifurcated trial, the amount of punitive damages must be determined in phase 2 by the same jury that decided in phase 1 that defendant was guilty of conduct resulting in liability for punitive damages.



CITY OF EL MONTE v SUPERIOR COURT (Different Jury) 29 CA4 272 [See: CivC Section 3295(d), 3294; Adams v Murakami 54 C3 105; Medo v SuperCt 205 CA3 64; People v Saunders 5 C4 580]



------------



0719 Without a specific agreement to the contrary, an arbitrator has the power to award punitive damages, and, since an arbitrator's award is not state action, this power does not violate the due process clause even though it is not subject to judicial review.



RIFKIND & STERLING v RIFKIND (Arbitration Puni's) 28 CA4 1282 [See: CCP 1286.6; J Alexander v Mendez 17 CA4 1083; Tate v Saratoga S&L 216 CA3 843; Pacific Mut v Haslip 499 US 1; Honda v Oberg 129 LEd2 336; Moncharsh v Heily 3 C4 1]



------------



0720 In determining whether to award enhanced costs because of a judgment more favorable than an offer of compromise, the trial court was correct in regarding as part of the judgment costs that had been awarded after a successful appeal from summary judgment, payment of which had been deferred until after trial.



FUNDAMENTAL v GRADOW (Appeal Costs) 28 CA4 966 [See: CCP 998, 1032, 1033.5; First National Stansbury 214 C 190; Supera v Moreland 28 CA2 517; O'Hare v Peacock 28 CA2 562]



------------



0721 In fraud and contract claims, if prejudgment interest is awarded, it should be at the rate of 7%, but whether it should be awarded and whether it should be compounded are questions for the trier of facts.



MICHELSON v HAMADA (Compound Interest) 29 CA4 1566 [See: CivC 3287, 3288; Nordahl v Dept of RE 48 CA3 657; Bullis v Security 21 C3 801; Stein v So Cal Edison 7 CA4 565; Westbrook v Fairchild 7 CA4 889]

------------



0722 REVIEW DENIED Attorney fees awarded under the Lemon Law should be measured by the reasonable fee the prevailing buyer paid or was obligated to pay as a result of the claim.



NIGHTINGALE v HYUNDAI (Lemon Fees) 29 CA4 1332 [See: CivCode 1790]



------------



0723 REVIEW GRANTED Even when attorney fees are recoverable under statute, a law firm is not entitled to fees for representing itself.



TROPE v KATZ (Pro Se Attorney) 28 CA4 1409 [See: Long Beach v Sten 206 C 473; City v Hunt 8 CA2 401]



------------



0724 A claimant who owned more than one vehicle and who was injured by an uninsured motorist is not entitled to benefits under the uninsured motorist provisions of the policy on a vehicle other than the one he was using at the time of the accident, if that policy contains a specific provision excluding coverage for other vehicles with similar insurance.



HARTFORD v CANCILLA (Described Vehicle) 28 CA4 1305 [See: InsC 11580.2; Hartford v Macri 4 C4 318, T/AT 11/94]



------------



0725 Two carriers insuring a tortfeasor against the same risk are not joint tortfeasors or co-obligors, and so the good faith settlement statute does not protect either of them against a claim by the other for indemnity.



HERRICK v CANADIAN (Separate Obligations) 29 CA4 753 [See: Fidelity v Fireman's 38 CA2 1; InsC 590; CCP 877, 877.6; Pacific Est v SuperCt 13 CA4 1561, T/AT 5/94, Fireman's v Maryland 21 CA4 1586; Hartford v SuperCt 29 CA4 435, T/AT 11/95]



------------



0726 Insurers under separate policies all of whom are sued by the same insured for bad faith refusal to defend or indemnify are not joint tortfeasors or co-obligors on a contract debt, and so are not protected by the good faith settlement statute against liability to each other in actions for contribution or indemnity.



HARTFORD v SUPERIOR COURT (Separate Obligations) 29 CA4 435 [See: CCP 877.6; Fireman's v Maryland 21 CA4 1586; Herrick v Canadian 29 CA4 753, T/AT 11/95]



------------



0727 If a jury finds that an insurance company's bad faith liability resulted from its agent's conduct, the insurance company may be entitled to equitable indemnity from the agent.



FIREMAN'S v HASLAM (Agent Indemnity) 29 CA4 1437 [See: American Motorcycle v SuperCt 20 C3 578; US Liab v Haidinger-Hayes 1 C3 586; NH Ins v Sauer 83 CA3 454]



------------



0728 The 180 day statute of limitations on actions for underground trespass by oil well drillers applies only to claims that well-drilling equipment of defendant actually entered subsurface land of plaintiff, and does not apply to other claims of damage resulting from well drilling activity.



TRAVELERS v CITY OF REDONDO BEACH (Oil Well) 28 CA4 1432 [See: CCP 359]



------------



0729 The statute giving a plaintiff 1 year to file a new action after the reversal, other than on the merits, of a previously favorable judgment does not apply to the reversal of an order permitting amendment of a complaint unless (1) plaintiff diligently pursued her claim; (2) lack of a forum for resolution of the claim resulted from forces outside plaintiff's control; and (3) no prejudice results to defendant.



HULL v CENTRAL PATHOLOGY (Pap Smear) 28 CA4 1328 [See: CCP 355, 425.13; Central Pathology v SuperCt 3 C4 181, T/AT 10/92; Bollinger v National 25 C2 399; Wood v Elling 20 C3 353]



------------



0730 If an action against a decedent is properly filed pursuant to an order of the Probate Court granting leave for late filing, a subsequent amendment of the complaint to name the decedent's personal representative relates back to the filing of the initial complaint.



BURGOS v TAMULONIS (Survival Time) 28 CA4 757 [See: CCP 366.2; ProbC 9103(a); Barrington v AH Robins 39 C3 146]



------------



0731 After the court sustains a demurrer granting leave to amend, and prior to the expiration of plaintiff's time to amend, plaintiff may elect to voluntarily dismiss without prejudice instead of amending.



PARSONS v UMANSKY (Voluntary Dismissal) 28 CA4 867 [See: CCP 581; Wells v Marina 29 C3 781]



------------



0732 Agency directors and other top governmental executives are not subject to depositions, except upon a showing that they have personal factual knowledge and that the information to be gained from such depositions is not available through any other source.

NAGLE v SUPERIOR COURT (Director's Deposition) 28 CA4 1465 [See: CCP 2025(i); Deukmejian v SuperCt 143 CA3 632; State Bd of Pharm v SuperCt 78 CA3d 641; Civiletti v MuniCt 116 CA3 105; Church of Scientology v IRS 138 FRD 9]



------------



0733 A defendant county subpoenaing a plaintiff's personal medical records is a subpoenaing party and is required to give notice as required by CCP 1985.3; in determining whether to permit a party to subpoena medical records, a court should balance the need for the records against the privacy rights of the person about whom the records are.



LANTZ v SUPERIOR COURT (Subpoenaeing Party) 28 CA4 1839 [See: CCP 1985.3]



------------



0734 A trial court should not have prohibited ex parte communications between the deceased defendant's personal representative and doctors who treated the defendant following the accident, even though plaintiff designated those same doctors as plaintiff's experts.



HALE v SUPERIOR COURT (No Communication) 28 CA4 1421 [See: EvC 990 etseq; Carlton v SuperCt 261 CA2 282; Rittenhouse v SuperCt 235 CA3 1584]



------------



0735 Even under the flexible rules of procedure for coordination cases, judgments in coordination test cases should not result in collateral estoppel until they are no longer subject to attack by appeal.



ABELSON v NAT'L UNION (Technical Equities) 28 CA4 776 [See: Chatton v Nat'l Union 10 CA4 846; Helfand v Nat'l Union 10 CA4 869; McLaughlin v Nat'l Union 23 CA4 1132]



------------

--------------------

*(T/AT III,4 - 12/94)

--------------------

------------



0736 A statute providing that persons grazing cattle on open range in counties devoted chiefly to grazing have no obligation to fence their cattle in prevents negligence liability from being based on failure to maintain a fence, but does not prevent liability from being imposed for other negligent acts that caused a bull to wander onto a road and be struck by plaintiff's vehicle.



SHIVELY v DYE CREEK CATTLE CO (Open Range) 29 CA4 1620 [See: CivC 1714; Rowland v Christian 69 C2 108; Ballard v Uribe 41 C3 564; F&AgC 16904, 17122, 17123]



------------



0737 It was unforeseeable that a railroad employee with no history of heart trouble would have a heart attack as the result of a strenuous job assignment, and, since foreseeability of the injury is an essential element of negligence liability under the FELA, the employer railroad is not liable for damage resulting from the employee's heart attack.



ALBERT v SO PAC (Unexpected Heart Attack) 30 CA4 529 [See: 45 USC 51; Gallick v B&O 372 US 108; Robert v Consolidated 832 F2 3; Morrison v Ill Cent 387 So2 754; Thompson v Tippit 300 SW2 351; Creamer v Ogden 242 P2 575]



------------



0738 The risk of falling into a rocky ravine located near a ski trail is inherent in the sport of skiing, so the doctrine of primary assumption of the risk prevents recovery by a skier against a ski resort for injuries the skier sustained when falling into a rocky ravine after deliberately skiing off the trail in an attempt to find a shortcut.



O'DONOGHUE v BEAR MT (Rocky Ravine) 30 CA4 188 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92]



------------



0739 A hospital is not strictly liable for injuries to a staff physician caused by a defective laser device furnished by the hospital for the physician's use.



SD HOSP ASSN v SUPERIOR COURT (Defective Laser) 30 CA4 8 [See: Greenman v Yuba 59 C2 57; Kaminski v Western 175 CA3 445; Carmichael v Reitz 17 CA3 958; Silverhart v Mount Zion 20 CA3 1022; Hector v Cedars-Sinai 180 CA3 493; Price v Shell 2 C3 245; Fakhoury v Magner 25 CA3 58; Garcia v Halsett 3 CA3 319]



------------



0740 A phlebotomist's action against a hospital for injuries she sustained when attacked by a patient about whose combative propensities the hospital failed to warn was an action arising from the professional negligence of a health care provider and, therefore, subject to CCP 425.13 (requiring leave of the court for inclusion of a punitive damages claim).



WILLIAMS v SUPERIOR COURT (Blood Drawing) 30 CA4 318 [See: CCP 425.13; Central Pathology v SuperCt 3 C4 181; Hedlund v SuperCt 34 C3 695]



------------



0741 The phrase "emergency medical coverage" as used by H&SC 1799.110 (setting forth qualifications for expert witnesses) refers to any medical services rendered in an emergency room of a hospital.



JAMES v ST ELIZABETH COMM HOSP (Emergency Medical Coverage) 30 CA4 73 [See: H&SC 1799.110; Jutzi v County 196 CA3 637; Zavala v Board 16 CA4 1755, T/AT 9/93]



------------



0742 A timely motion for leave to add a claim for punitive damages in an action arising from the professional negligence of a health care provider must be granted unless as a matter of law plaintiff's allegations and declarations are insufficient to support a judgment for punitive damages; an employer is not vicariously liable for punitive damages for its employee's acts unless the employer's conduct could result in liability for punitive damages; a corporation is not liable for punitive damages for acts of a managing agent unless the acts were committed in the corporation's interest.



COLLEGE HOSP v SUPERIOR COURT (Vicarious Puni's) 8 C4 704 [See: CCP 425.13; Central Pathology v SuperCt 3 C4 181, T/AT 10/92; Aquino v SuperCt 21 CA4 847; Looney v SuperCt 16 CA4 521, T/AT 8/93; Rowe v SuperCt 15 CA4 1711, T/AT 8/93; Hung v Wang 8 CA4 908, T/AT 10/92; CivC 3294]



------------



0743 A public employee with peace officer status is acting in the scope of employment when attempting to make an arrest while off duty, and a public entity's policy providing to the contrary will not provide it with a defense to a claim that it is vicariously liable for the officer's conduct.



INOUYE v COUNTY (Off Duty Officer) 30 CA4 278 [See: GovC 815.2; PenC 830.31, 836]



------------



0744 A public entity has no duty to defend or indemnify an employee who is sued for acts which, although alleged to be in the scope of employment, were actually not; a police officer was not acting within the scope of employment when he had sexual contact with a civilian informant in the officer's home, while on vacation, and without coercing her by abusing his authority as an officer.



SD POLICE v CITY (Off Duty Sex) 29 CA4 1736 [See: Alma W v Oakland USD 123 CA3 133; Mary M v City 54 C3 202; White v County 166 CA3 566; Perez v Van Groningen 41 C3 962; GovC 995]



------------



0745 Hospital officials who asked police to return an escaped patient for psychiatric evaluation were immune from liability for failing to warn police that the patient was dangerous; police officers acting at the request of hospital officials who intended to detain a patient for psychiatric evaluation were immune from liability for releasing the patient from their custody.



JOHNSON v COUNTY (Escaped Patient) 29 CA4 1400 [See: W&IC 5150, 5154; GovC 856(a); Tarasoff v Regents 17 C3 425; Buenavista v City 207 CA3 1168; Thing v LaChusa 48 C3 644]



------------



0746 Since a corporation acts only through its employees and agents, employees of a corporation acting in the interests of the corporation, cannot be guilty of civil conspiracy with each other or with the corporation.



BLACK v B OF A (Corporate Conspiracy) 30 CA4 1 [See: Schessler v Keck 125 CA2 827; Wyatt v Union 24 C3 773; Wise v SoPac 223 CA2 50; Applied v Litton 7 C4 503]



------------



0747 An attorney-client relationship continues to exist, and the statute of limitations for attorney malpractice continues to be tolled, so long as the attorney represents or advises the client.



WORTHINGTON v RUSCONI (Dissatisfied Client) 29 CA4 1488 [See: CCP 340.6; Laird v Blacker 2 C4 606; Hensley v Caietti 13 CA4 1165, T/AT 5/94; O'Neill v Tichy 19 CA4 114, T/AT 12/93]



------------



0748 By injecting itself into various public controversies, a radio station and its proprietor became public figures and, in their defamation action against a rival radio station, they were therefore required to show that defamatory statements about them were false and made with knowledge of their falsity or with a serious doubt about their truth; responsibility in broadcasting is a matter of public concern.



STOLZ v KSFM (Radio Wars) 30 CA4 195 [See: NY Times v Sullivan 376 US 254; Curtis v Butts 388 US 130; Gertz v Robert Welch 418 US 323; Phila Newspapers v Hepps 475 US 767; Dun & Bradstreet v Greenmoss 472 US 749; Denney v Lawrence 22 CA4 927; Live Oak v Cohagan 234 CA3 1277]



------------



0749 A person who has been sued on several theories, some of which were supported by probable cause, may maintain an action for malicious prosecution of those theories that were not supported by probable cause.



CROWLEY v KATLEMAN (Alternate Theory) 8 C4 666 [See: Sheldon Appel v Albert 47 C3 863; Bertero v National 13 C3 43]



------------



0750 State Compensation Insurance Fund has an obligation to handle workers' compensation claims against its insured with a good faith regard for the resulting effects on the insured's premiums and dividends; a pattern of negligence in processing claims could be evidence of bad faith by SCIF resulting in liability for general tort damages as well as punitive damages.



TRICOR v SCIF (SCIF Liability) 30 CA4 230 [See: Courtesy v SuperCt 8 CA4 1504, T/AT 4/93; Maxon v SCIF 16 CA4 1387, T/AT 9/93; Security v SCIF 17 CA4 887, T/AT 10/93]



------------



0751 Although a few recent cases, one of which is before CASC, suggest that a workers' compensation carrier may have an obligation to defend its insured against a tort lawsuit for wrongful termination, if the policy contains a properly worded exclusion, no such duty exists.



TRANSAMERICA v SUPERIOR COURT (WC Exclusion) 29 CA4 1705 [See: Wong v SCIF 12 CA4 686, T/AT 3/93]



------------



0752 REVIEW GRANTED Emotional distress resulting from interference with economic advantage is not "bodily injury" under a general liability policy; an insurer which defends under a reservation of rights is entitled to recover attorney fees from the insured even though the policy contains no specific agreement to that effect.



GOSSARD v OHIO CAS (Economic Emotion) 29 CA4 1660 [See: American Motorists v Allied-Sysco 19 CA4 1342, T/AT 1/94; Chatton v NU 10 CA4 846, T/AT 1/93]



------------



0753 Under the doctrine of collateral estoppel, a juvenile court's finding that the insured's teenaged son wilfully injured the claimant by shooting him repeatedly with a .38 pistol at close range justified the conclusion that a policy exclusion for expected or intended injuries relieved the insurer of a duty to defend or indemnify.

WESTERN v YAMAMOTO (Juvenile Estoppel) 29 CA4 1474 [See: InsC 533; Clemmer v Hartford 22 C3 865]



------------



0754 Judgment in a breach of contract action against a corporation is not res judicata in an action by the same plaintiff against stockholders of the corporation for tortious acts that allegedly prevented plaintiff from enforcing the judgment against the corporation, because the claims are based on different primary rights.



AMEDEO v BAKARA (Different Right) 29 CA4 1828 [See: Eichman v Fotomat 147 CA3 1170; Craig v County 221 CA3 1294]



------------



0755 A trial court lacks the power to enter a dismissal for lack of diligent prosecution until at least two years after commencement of the action.



ROMAN v USARY (Premature Dismissal) 29 CA4 1422 [See: CA R of C 372; CCP 583.410]



------------



0756 A motion to vacate a default should not be granted unless it is made within a reasonable time after learning that the default was taken.



SCHENKEL v RESNIK (Slow Motion) 27 CA4 Supp 1 [See: Kendall v Barker 197 CA3 619; Rogers v Silverman 216 CA3 1114; CCP 473]



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0757 An agreement to indemnify against all claims, demands, and liability requires indemnity for defense costs, even though the party seeking indemnity was not found to be liable in the underlying action.



US ELEVATOR v PACIFIC (Defense Costs) 30 CA4 122 [See: CivC 2778; Gribaldo v Agrippina 3 C3 434]



------------



0758 Due process requires that attorneys be given notice and an opportunity to be heard before sanctions are imposed upon them; sanctions should not be used as a device to induce attorneys to settle a case.



BARRIENTOS v CITY (Due Process Sanctions) 30 CA4 63 [See: Caldwell v Samuels 222 CA3 970; Bergman v Rifkind 227 CA3 1380; Sigala v Anaheim 15 CA4 661]



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0759 If it was an abuse of discretion for the trial court to send a case to arbitration, enhanced costs provisions of the CCP do not apply to a less favorable trial de novo result.



SHARPLES v CHOLE (No Costs) 29 CA4 1213 [See: CCP 1141.21; CA RofC 1600; Walker v SuperCt 53 C3 257]



------------



0760 Filing a complaint with DFEH is a jurisdictional pre-requisite to civil action under FEHA, and this pre-requisite is not satisfied by filing with the EEOC.



MARTIN v LOCKHEED (Wrong Agency) 29 CA4 1718 [See: GovC 12900 etseq; Rojo v Kliger 52 C3 65; Denney v Universal 10 CA4 1226, T105; Miller v United 174 CA3 878]



------------



0761 If all jurors write on slips of paper the amounts they believe should be awarded and an average is made of the numbers they have written, their award is not invalid as a quotient verdict so long as the process was used as a focus for discussion by the jurors and the verdict they reached was the product of that discussion; in the face of conflicting juror affidavits about whether the verdict was reached by quotient or by discussion, the trial court's conclusion about the credibility of the various affidavits should not be disturbed except for an abuse of discretion.



FREDRICS v PAIGE (Quotient Verdict) 29 CA4 1642 [See: CCP 657.2; Dixon v Pluns 98 C 384; Chronakis v Windsor 14 CA4 1058, T/AT 6/93; Weathers v Kaiser 5 C3 98; Schelbauer v Butler 35 C3 442]



------------

--------------------

*(T/AT III,5 - 1/95)

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------------



0762 Conduct by a health care provider does not give rise to separate claims for professional negligence and ordinary negligence because these claims are identical; the distinction between professional negligence and ordinary negligence might be relevant in determining whether the conduct involved is sufficiently within the common knowledge of a jury to make expert testimony unnecessary.



FLOWERS v TORRANCE MEM HOSP (Gurney Rails) 8 C4 992 [See: Gopaul v Herrick 38 CA3 1002; Murillo v Good Samaritan 99 CA3 50]



------------



0763 REVIEW DENIED The increased risk of collision resulting from the intoxication of other skiers is not inherent in the risk of skiing and, therefore, is not the subject of primary assumption of the risk.



FREEMAN v HALE (Drunken Skier) 30 CA4 1388 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339; O'Donoghue v Bear Mt 30 CA4 188, T/AT 11/84; McDaniel v Dowell 210 CA2 26]



------------



0764 A public entity is not liable for injury resulting from a dangerous condition of its property unless some characteristic of the property, apart from the way it was used by third persons, contributed to the injury.



PEKAREK v CITY (Ice Cream) 30 CA4 909 [See: Hayes v State 11 C3 469; Ducey v Argo 25 C3 707; Peterson v SF Comm College 36 C3 799; Swaner v City 150 CA3 789; Rodriguez v Inglewood USD 186 CA3 707]



------------



0765 DEPUBLISHED A plaintiff who sustained prenatal injuries as a result of the negligence of the employer of plaintiff's mother is not restricted to workers' compensation remedies against the employer.



AGNEW-WATSON v COUNTY (Unborn Employee) 30 CA4 626 [See: CivC 43.1; Scott v McPheeters 33 CA2 629; LabC 3200 etseq; Bell v Macy's 212 CA3 1442]



------------



0766 REVIEW GRANTED A plaintiff who was wrongfully terminated after being fraudulently induced to relocate for the purpose of accepting employment can successfully state tort claims for wrongful termination in violation of public policy, fraud, negligent misrepresentation resulting in financial losses, and intentional infliction of emotional distress, but cannot successfully state a claim for negligent infliction of emotional distress, because workers' compensation is the exclusive remedy for job-related negligence resulting in personal injury.



LAZAR v SUPERIOR COURT (Cross Country Fraud) 30 CA4 496 [See: Hunter v Up-Right 6 C4 1174; LabC 970, 3600 etseq; Foley v Interactive 47 C3 654; Tameny v ARCO 27 C3 167; Gantt v Sentry 1 C4 1083; Fermino v Fedco 7 C4 701]



------------



0767 A workers' compensation carrier has no duty to defend its insured against a claim for wrongful termination in violation of public policy on the ground of unlawful discrimination.



LA JOLLA B & T v INDUSTRIAL INDEM (Termination Defense) 9 C4 27 [See: Tameny v ARCO 27 C3 167; Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083; Wong v SCIF 12 CA4 686; Gray v Zurich 65 C2 263]



------------



0768 Public employees terminated for exposing improprieties in the public agency that employed them can successfully state a cause of action for wrongful termination in violation of a public policy embodied in the state's "whistleblower" statute and for violation of the federal Civil Rights Act; supervisors who effected the termination are not protected from liability by statutory immunity applicable to discretionary acts.



SOUTHERN v SUPERIOR COURT (Whistleblower Retaliation) 30 CA4 713 [See: GovC 820.2, 12653; Shoemaker v Myers 2 CA4 1407; 42 USC 1983; Waters v Churchill 128 LEd2 686; Rankin v McPherson 483 US 378; Connick v Myers 461 US 138; Pickering v Bd of Ed 391 US 563]



------------



0769 Statements made in the course of administrative proceedings or professional disciplinary proceedings were absolutely privileged against defamation liability under various sections of the Civil Code; statements made outside the scope of those proceedings were not privileged, but could not result in defamation liability unless they were false; there is no constitutional protection of reputation, so defamation cannot result in liability under the federal Civil Rights Act.



ELLENBERGER v ESPINOSA (Defamed Dentist) 30 CA4 943 [See: CivC 47, 43.8; 42 USC 1983; Paul v Davis 424 US 693; Siegert v Gilley 500 US 226]



------------



0770 Statements made by members of the public to administrative bodies pursuant to statutes inviting or authorizing comment by the public are absolutely privileged and cannot result in liability regardless of the motives of persons making such statements and regardless of whether the statements were actuated by malice; CA's anti-SLAPP statute does not violate constitutional protections of due process.



DIXON v SUPERIOR COURT (Puvunga SLAPP) 30 CA4 733 [See: Strategic Lawsuits... 27 C Western LR 399; CCP 425.16; Hung v Wang 8 CA4 908, T/AT 10/92; Wilcox v SuperCt 27 CA4 809, Matossian v Fahmie 101 CA3 128]



------------



0771 The statute of limitations on an action for malicious prosecution begins to run when the court issues an appealable order terminating the underlying claim against the malicious prosecution plaintiff.



BOB BAKER ENTERPRISES v CHRYSLER (Appealability) 30 CA4 678 [See: CCP 340(3); Feld v Western 2 CA4 1328; Rare Coin v A-Mark 202 CA3 330; Gibbs v Haight 183 CA3 716; Crowley v Katleman 8 C4 666, T/AT 12/94; Sheldon Appel v Albert 47 C3 863]



------------



0772 In a claim for damage to realty resulting from the presence of asbestos, plaintiff's allegations that it began attempting to remedy problems caused by the asbestos were judicial admissions that damage occurred, a cause of action accrued, and the statute of limitations began running at the time the attempts were made; since the essence of the claim was that damage resulted from defects in a product furnished by defendants, it could not properly be characterized as an action for continuing nuisance.



CITY OF SD v GYPSUM (Asbestos Accrual) 30 CA4 575 [See: CCP 338(b); Coughlin v Owens T/AT 3/94; Capogeannis v SuperCt 12 CA4 668, T/AT 3/93]



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0773 Under a policy insuring against liability for unfair competition, there was a duty to defend if the policy covered undefined "occurrences or events that happen within the policy period" or "offenses committed during the policy period," but there was no duty to defend if the policy covered "conduct which results during the policy period in an injury" or "injury or damage arising out of conduct covered by the policy."



AMERICAN CYANAMID v AMERICAN HOME (Policy Trigger) 30 CA4 969 [See: Montrose v SuperCt 6 C4 287; Bank of the West v SuperCt 2 C4 1254, T/AT 9/92]



------------



0774 An attorney malpractice action cannot be maintained by an insurer as subrogee of the attorney's client.



FIREMAN'S FUND v MCDONALD (Malpractice Subrogation) 30 CA4 1373 [See: Jackson v Rogers 210 CA3 336; Goodley v Wank 62 CA3 389; Fifield v Finston 54 C2 632; Peller v Liberty Mut 220 CA2 610]



------------



0775 An insurer's delay in paying a one party collision claim does not establish bad faith if the delay was reasonable under the circumstances; delay was reasonable in the circumstances of this case, given the facts that the damage was to an antique Citroen and that the claimant himself was responsible for some of the delay.



CARLTON v ST PAUL MERCURY (Antique Citroen) 30 CA4 1440 [See: Opsal v United Services 2 CA4 1197; Gourley v State Farm 53 C3 121; Paulfrey v Blue Chip 150 CA3d 187]



------------



0776 When a default has been entered against an uncooperative insured in a claim by a third party, an insurer's motion to intervene should be granted so the insurer will have an opportunity to move to vacate the default.



NASONGHKHLA v GONZALEZ (Uncooperative Insured) 29 CA4 Supp 1 [See: Jade K v Viguri 210 CA3 1459; Clemmer v Hartford 22 C3 865; CCP 473]



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0777 Mandatory relief provisions of CCP 473 (for attorney neglect) do not apply to a dismissal for failure diligently to prosecute entered under CCP 583.10.



GRAHAM v BEERS (Dueling Statutes) 30 CA4 1656 [See: CCP 583.410, 473; Tustin v Wehage 27 CA4 1557]



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0778 Under the Soldiers' and Sailors' Civil Relief Act, the court can not enter a default judgment without receiving a declaration of the defaulting party's non military status, but the declaration is not required prior to the entry of the default itself.



INTERINSURANCE v COLLINS (Non Military) 30 CA4 1445 [See: B & B v Kelley 61 CA2 3; 50 USC 501-591]



------------



0779 Even though not specifically authorized by statute, a Local Court Rule may require a plaintiff to file a case information sheet before its complaint will be accepted for filing.



HARTFORD v GONZALEZ (Information Sheet) 31 CA4 51 [See: Ventura SuperCt Local Rule 3.10; CCP 412.10, 411.10; GovC 68070, 68607, 68612; Mann v Cracchiolo 38 C3 18]



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0780 After determining that an unsatisfied judgment against a real estate licensee was based on the licensee's fraud, the Real Estate Commissioner can pay the judgment from the Real Estate Department's Recovery Account, even though the judgment was stipulated as part of a settlement and was not the result of a judicial finding of fraud.



DOYLE v DEPARTMENT OF REAL ESTATE (Recovery Account) 30 CA4 873 [See: B&PC 10471-10473; Brown v Kelly 48 C3 711]



------------



0781 A contract clause limiting the liability of a soils engineering contractor in connection with a gabion blanket slope repair project, was found to be void as a violation of public policy.



VINER v BROCKWAY (Gabion Blanket) 30 CA4 1307 [See: CivC 2782.5; Markborough v SuperCt 227 CA3 705; Tunkl v Regents 60 C2 92]



------------



0782 A plaintiff who claims that a bank discriminated against him on the basis of his race while he was attempting to assist his clients in obtaining banking services can state a cause of action under the Unruh Act even though he himself was not a bank customer at the time of the



JACKSON v SUPERIOR COURT (Bank Discrimination) 30 CA4 936 [See: CivC 51; Koire v Metro 40 C3 24; Moran v Peralta 825 FS 891; Pines v Tomson 160 CA3 370]



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--------------------

*(T/AT III,6 - 2/95)

--------------------

------------



0783 REVIEW DENIED A physician who knew that a patient was infected with AIDS owed the patient's subsequent sex partner a duty to act reasonably to prevent the patient from communicating the disease to him/her.



REISNER v REGENTS (HIV Warning) 31 CA4 1195 [See: "Liability of Doctor..." 3 ALR5 370; Tarasoff v Regents 17 C3 425; Myers v Quesenberry 144 CA3 888]



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0784 Unless it has reason to anticipate that a passenger on a particular municipal bus will be attacked by a fellow passenger, a city has no duty to take security measures to prevent such an attack.



CITY v SUPERIOR COURT (Bus Attack) 31 CA4 45 [See: CivC 2100; Lopez v SCRTD 40 C3 780]



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0785 DEPUBLISHED A police officer acted reasonably when she was informed there was a robbery in progress, told by a hysterical store manager that some assailants were beating up his assistant, ordered the assailants to stop when they ran out of the store, and then shot at one of them when he made a movement that led the officer to believe he was going to shoot her. [Rehearing of #625]



MORENO v COUNTY (Excessive Force) 30 CA4 1684 [See: 42 USC 1983; Tennessee v Garner 471 US 1; Graham v Connor 490 US 386]



------------



0786 A landholder who hires an independent contractor to do work on the land is not vicariously liable under the peculiar risk doctrine for injuries sustained by an employee of the contractor resulting from the negligence of an employee of a different independent contractor also employed to do work on the land; the Supreme Court's ruling in Privette should be applied retroactively.



SMITH v ACandS (Peculiar Risk Asbestos) 31 CA4 77 [See: Woolen v Aerojet 57 C2 407; Privette v SuperCt 5 C4 689, T/AT 9/93; Owens v Giannetta 23 CA4 1662, T/AT 5/94]



------------



0787 In making recommendations that a foster care provider's license be revoked, social service employees are acting as prosecutors and are entitled to prosecutorial immunity.



GENSBURG v MILLER (Foster Care License) 31 CA4 512 [See: 42 USC 1983; GovC 821.6; Imbler v Pachtman 424 US 409; Buckley v Fitzsimmons 125 LEd2 209; Jenkins v County 212 CA3 278; Alicia T v County 222 CA3 869]



------------



0788 REVIEW DENIED School-sponsored, extra-curricular athletic activities are not "recreational" activities, and so school districts are not immune from liability for injuries that occur during their course.



ACOSTA v LA USD (Front Catch) 31 CA4 471 [See: Hartzell v Connell 35 C3 899; Leger v Stockton USD 202 CA3 1448; GovC 831.7]



------------



0789 REVIEW DENIED Since the H&SC requires all persons to receive DPT immunizations before being admitted to a school, such immunizations are required by law, and health care providers who administer them are immune from liability for negligence in doing so.



SALASGUEVARA v FRYE (DPT) 31 CA4 330 [See: H&SC 429.36, 3380-3390; Flood v Wyeth 183 CA3 1272]



------------



0790 An attorney withdrawing from the representation of a client because of a conflict of interest, has no duty to advise the client about the statute of limitations or to consult another attorney.



FLATT v SUPERIOR COURT (Two Masters) 9 C4 275 [See: CA Rules of Prof Cond 3-310; Matthew 6:24; Jeffry v Pounds 67 CA3 6; Anderson v Eaton 211 C 113]



------------



0791 A trial court's denial of a plaintiff's petition to file a civil conspiracy complaint against attorneys is a finding that plaintiff can not make out a prima facie case and is res judicata in a subsequent attempt by the plaintiff to file a similar complaint.



CASTRO v HIGAKI (Bomber's Bucks) 31 CA4 350 [See: Hung v Wang 8 CA4 908, T/AT 9/92; CivC 1714.10]



------------



0792 An action for transactional attorney malpractice consisting of the negligent preparation of documents accrues upon entry of an adverse judgment, settlement, or dismissal of the underlying action.



ITT v NILES (Defective Documents) 9 C4 245 [See: CCP 340.6; Laird v Blacker 2 C4 606; Sirott v Latts 6 CA4 923; Johnson v Simonelli 231 CA3 105; Kovacevich v McKinney 16 CA4 337, T/AT 8/93; Hensley v Caietti 13 CA4 1165, T/AT 5/94]



------------



0793 REVIEW DENIED A trial court may be justified in entering a discretionary dismissal of an action for failure diligently to prosecute, and if so, the dismissal should be affirmed even if the trial court stated the wrong reason for it.



KIDD v KOPALD (Malpractice Delay) 31 CA4 132 [See: CCP 583; Laird v Blacker 2 C4 606; Dubois v Corroon 12 CA4 1689, T/AT 4/93]



------------



0794 REVIEW DENIED A seller of realty who made fraudulent misrepresentations or concealments to a purchaser may be liable to a remote purchaser if the seller knew that the realty was likely to be resold and knew that the misrepresentations or concealments were likely to be repeated to the remote purchaser.



GEERNAERT v MITCHELL (Settling House) 31 CA4 601 [See: REST(2) Torts 533; Cohen v Citizens 143 CA2 480; Varwig v Anderson 74 CA3 578; Barnhouse v City 133 CA3 171; Newhall v SuperCt 19 CA4 334, T/AT 12/93; BAJI 12.50]



------------



0795 REVIEW DENIED A securities broker who fraudulently sold inappropriate investments by fraudulently representing that they were appropriate may be liable for RICO violations.



GERVASE v SUPERIOR COURT (RICO Securities) 31 CA4 1218 [See: 18 USC 1963; Cianci v SuperCt 40 C3 903]



------------



0796 REVIEW DENIED If a request for admission that defendant did not engage in fraud is accompanied by form interrogatories demanding facts supporting plaintiff's refusal to admit, plaintiff's failure to furnish a factual basis for the refusal, shifts to plaintiff the burden of defeating defendant's motion for summary judgment by showing that there is a triable issue of fact in plaintiff's fraud claim.



UNION v LA SUPERIOR COURT (Shifted Burden) 31 CA4 573 [See: CCP 437]



------------



0797 REVIEW DENIED A termination to avoid paying commissions earned by the employee or in retaliation for the employee's report to upper management about the employer's unlawful failure to pay overtime to other employees violates public policy and so may be the basis of a tort action for wrongful termination; an employment performance evaluation that accuses an employee of making a one hundred thousand dollar error in estimating a job imputes incompetence to the employee and so may be the basis of a defamation action.



GOULD v MARYLAND SOUND (Unpaid Commissions) 31 CA4 1137 [See: Gantt v Sentry 1 C4 1083; Foley v Interactive 47 C3 654; Jensen v H-P 14 CA4 958, T/AT 6/93]



------------



0798 REVIEW DENIED Under FEHA, a fellow employee who practices unlawful employment discrimination against plaintiff and sexually harasses plaintiff can be personally liable for damages.



PAGE v SUPERIOR COURT (Who's A Person) 31 CA4 1206 [See: GovC 12900 etseq; Carr v Barnabey's 23 CA4 14, T/AT 4/94; Kelly-Zurian v Wohl 22 CA4 397, T/AT 3/94; Mogilefsky v SuperCt 20 CA4 1409, T/AT 2/94; Accardi v SuperCt 17 CA4 341, T/AT 9/93; Fisher v San Pedro 214 CA3 590]



------------



0799 REVIEW DENIED A policy protecting the insurer and any subsidiaries "hereafter acquired" does not cover subsidiaries acquired after the policy expired.



COOPER v TRANSCONTINENTAL (After-acquired Subsidiaries) 31 CA4 1094 [See: AIU v SuperCt 51 C3 807; Bank of the West v SuperCt 2 C4 1254, T/AT 9/92; Bay Cities v Lawyers' Mut 5 C4 854, T/AT 10/93]



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0800 A workers' compensation insurer that defends its insured against an employee's tort claim does not thereby acquire an obligation to defend third parties which its insured has contracted to indemnify.



REAGEN's v BEAVER (Toxic Vacuum) 31 CA4 375 [See: LabC 3600 etseq; Bay Cities v Lawyers' Mut 5 C4 854, T/AT 10/93; Montrose v SuperCt 6 C4 287, T/AT 1/95; Devin v United 6 CA4 1149; Johns-Manville v SuperCt 27 C3 465]



------------



0801 An insurance carrier that offered to pay policy limits in exchange for releases of both its insureds was not acting in bad faith when it refused to pay policy limits in exchange for a release of only one of its insureds.



LEHTO v ALLSTATE (One Release) 31 CA4 60 [See: Purdy v Pacific 157 CA3 59; Comunale v Traders 50 C2d 654; Strauss v Farmers 26 CA4 1017, T/AT 8/94]



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0802 A general release that specifically referred to all claims past, present, and future; known and unknown; resulting from the presence of known and unknown sources of contamination on realty could not be rescinded upon the discovery of previously unknown sources of contamination on the realty unless the released party knew they existed and fraudulently concealed them.



SD HOSPICE v COUNTY (Second Tank) 31 CA4 1048 [See: Winet v Price 4 CA4 1159]



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0803 Pursuant to a contract providing for attorney fees to the prevailing party in any action arising under the contract, a party who loses a breach of contract action, but wins a tort action arising under the contract is a prevailing party and is entitled to attorney fees; those attorney fees should be added to the award before deciding whether the prevailing party is entitled to augmented costs under CCP 998 for receiving a judgment more favorable than a previously rejected offer of compromise.



ADAM v DeCHARON (Tort Fees) 31 CA4 708 [See: CivC 1717; CCP 998, 1021; Xuereb v Marcus 3 CA4 1338; Lerner v Ward 13 CA4 155, T/AT 4/93]



------------



0804 REVIEW GRANTED If a claim for continuing nuisance is based on the existence of a latent construction defect, it is subject to the 10 year statute of limitations for latent construction defects rather than to the rules regarding limitation of continuing nuisance actions.



CHEVRON v SUPERIOR COURT (Continuing Defect) 31 CA4 1 [See: CCP 337.15; Grange v SuperCt 16 CA4 1349, T/AT 9/93; Wilshire v ARCO 20 CA4 732, T/AT 2/94; Mangini v Aerojet 230 CA3 1125; KFC v Meghrig 23 CA4 1167, T/AT 5/94; Newhall v SuperCt 19 CA4 334, T/AT 12/93; Capogeannis v SuperCt 12 CA4 668, T/AT 3/93]



------------



0805 If an order permitting the withdrawal of an attorney fails to comply with the provisions of California Rules of Court requiring warnings to the client regarding the consequences of proceeding without an attorney, a subsequent default judgment entered against the unrepresented client should be vacated.



URETHANE v LATIMER (Inadequate Withdrawal) 31 CA4 763 [See: CA RofC 376(d)]



------------



0806 Trial court was correct in dismissing, on the ground of forum non conveniens, a products liability claim in which plaintiffs resided in Nevada, the product was purchased in Nevada from a Nevada resident, the accident occurred in Nevada, most of the witnesses reside in Nevada and Idaho and would be extremely inconvenienced by a California trial, the California defendant neither designed nor manufactured the product, and the lawsuit would be a burden on California courts, jurors, and taxpayers.



RINAURO v HONDA (Nevada Conveniens) 31 CA4 506 [See: Stangvik v Shiley 54 C3 744; CCP 410.30]



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--------------------

*(T/AT III,7 - 3/95)

--------------------

------------



0807 REVIEW DENIED Driving while intoxicated was not a breach of a duty defendant owed a tow-truck operator who was injured when struck by a passing vehicle while attempting to hook up and tow defendant's vehicle after it became disabled as a result of defendant's intoxication.



BRYANT v GLASTETTER (Tow Truck) 32 CA4 770 [See: Holland v Crumb T/AT 9/94; Neighbarger v Irwin 8 C4 532, T/AT 11/94; Rowland v Christian 69 C2 108; Ballard v Uribe 41 C3 564; Thing v LaChusa 48 C3 644; Wagner v International 232 NY 176; Solgaard v Guy 6 C3 361]



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0808 REVIEW DENIED By participating in a white water rafting excursion, plaintiff assumed the risk of striking her head on an exposed metal frame that was part of the raft; tour operators who transported plaintiff in a raft were providing a service rather than furnishing a product, and so were not strictly liable for injuries resulting from a defect in the raft.



FERRARI v GRAND CANYON DORIES (White Water) 32 CA4 248 [See: Knight v Jewett 3 C4 296; Ford v Gouin 3 C4 339; Greenman v Yuba 59 C2 57; McGee v Cessna 82 CA3 1005; Pierson v Sharp 216 CA3 340]



------------



0809 A physician examining a claimant on behalf of a workers' compensation carrier owes the claimant a duty to perform the examination in a reasonable manner to avoid injuring her; the medical malpractice statute of limitations applies to a claim that the physician breached that duty; even though conducted in preparation for litigation, a physical examination is non-communicative and, therefore, not protected by the litigation privilege of CivC 47.



MERO v SADOFF (Clumsy Doctor) 31 CA4 1466 [See: Felton v Schaeffer 229 CA3 229; Keene v Wiggins 69 CA3 308 ; Flowers v Torrance Memorial 8 C4 992; Rowland v Christian 69 C2 108; CCP 340, 364; CivC 47]



------------



0810 REVIEW DENIED Plaintiff's claim that defendant doctor injured her by negligent diagnosis and treatment is based on the same primary right as her previous claim that defendant's negligent diagnosis and treatment resulted in her falling out of a hospital bed and sustaining injury, and so a judgment in the previous claim is res judicata in the subsequent claim.



HENRY v CLIFFORD (Hospital Fall) 32 CA4 315 [See: Sutphin v Speik 15 C2 195; Hulsey v Koehler 218 CA3 1150; Jolly v Eli Lilly 44 C3 1103; Castro v Higaki 31 CA4 350, T/AT 2/95]



------------



0811 REVIEW DENIED Cumis counsel representing an insured being defended by an insurer under a reservation of rights does not owe the insurer a duty to act reasonably in representing the insured, but does owe the insurer a duty to make disclosures required by statute.



ASSURANCE v HAVEN (Cumis Duties) 32 CA4 78 [See: Gray v Zurich 65 C2 263; SDFCU v Cumis 162 CA3 358; CivC 2860]



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0812 The manufacturer of a milking machine did not owe a purchaser of the machine a duty to protect against economic losses that did not become noticeable until the machine was technologically upgraded fifteen years after its initial installation.



OTT v ALFA-LAVAL (Milking Machine) 31 CA4 1439 [See: J'Aire v Gregory 24 C3 799; Chameleon v Air Dynamics 101 CA3 418; Earp v Nobmann 122 CA3 270; Worldvision v ABC 142 CA3 589; Pisano v American 146 CA3 194; Huang v Garner 157 CA3 404]



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0813 REVIEW GRANTED In an action for intentional interference with prospective business advantage, a defense based on the privilege to compete is defeated if the defendant's conduct is independently actionable as a violation of statute or separate tort.



SF DESIGN v PORTMAN (Apparel Mart) 32 CA4 716 [See: Tuttle v Buck 119 NW 946; Youst v Longo 43 C3 64; Chapman v California Mart 2 CA3 846; Katz v Kapper 7 CA2 1; A-Mark v General Mills 148 CA3 312]



------------



0814 A triable issue exists as to whether a TV broadcaster's conduct in telling young children about a murder-suicide in a neighbor's household was extreme and outrageous.



KOVR-TV v SUPERIOR COURT (Dirty Laundry) 31 CA4 1023 [See: Christensen v SuperCt 54 C3 868; Cervantez v JC Penney 24 C3 579; Rest2 Torts 46; Yurick v SuperCt 209 CA3 1116]



------------



0815 REVIEW DENIED Expert testimony that defendant's conduct was a substantial factor in producing plaintiff's injury is sufficient to justify submission of the causation issue to a jury; having established that defendant's conduct was a cause of plaintiff's injury, plaintiff does not have the burden of apportioning how much of the damage resulted from defendant's conduct.



ESPINOSA v LITTLE (Lithium Brain Damage) 31 CA4 1304 [See: Mitchell v Gonzales 54 C3 1041; Alef v Alta Bates Hospital 5 CA4 208; Bromme v Pavitt 5 CA4 1487; Jones v Ortho 163 CA3 396]



------------



0816 To establish a causal connection between a defendant's conduct in manufacturing or otherwise supplying asbestos products and plaintiff's asbestos related disease, plaintiff must show that plaintiff was exposed to defendant's products and that such exposure was probably a cause of plaintiff's disease.



LINEAWEAVER v PLANT (Asbestos Causation) 31 CA4 1409 [See: Sindell v Abbott 26 C3 588; Dumin v Owens 28 CA4 650, T/AT 10/94; Summers v Tice 33 C2 80; Menne v Celotex 861 F2 1453; Coughlin v Owens T/AT 3/94]



------------



0817 REVIEW DENIED In a products liability claim based on the allegation that defendant's asbestos products were defective in design, plaintiff is not required to offer evidence that a better design was possible.



SPARKS v OWENS-ILLINOIS (Better Insulation) 32 CA4 461 [See: Barker v Lull 20 C3 413; Soule v GM 8 C4 548, T/AT 11/94; Lineaweaver v Plant T/AT 3/95]



------------



0818 Public employees are immune from liability for misrepresentation except in cases of malice, corruption, or fraud motivated by malice or corruption; a public employee's mishandling of documents submitted in support of an application for disability pension is not privileged as a discretionary act.



MASTERS v SAN BERNARDINO (Withheld Reports) 32 CA4 30 [See: GovC 815.2, 818.8, 820.2, 822.2; Johnson v State 69 C2 782; Schonfeld v City 50 CA3 401]



------------



0819 Statutory immunity provided to public entities for injuries to inpatients in mental institutions is a jurisdictional bar to liability and is not waived by failure to assert it as an affirmative defense.



HATA v LA COUNTY (Three Foot Dive) 31 CA4 1791 [See: GovC 854.8(a)(2); Buford v California 104 CA3 811; De La Rosa v City 16 CA3 739; McMahan's v City 146 CA3]



------------



0820 REVIEW DENIED Statutory immunity from liability for injuries resulting from failure to provide adequate police protection applies to a claim under the Unruh Civil Rights Act based on the allegation that a public entity's withdrawal of police protection from minority neighborhoods during a riot was the result of racial discrimination, but does not prevent the granting of equitable relief.



GATES v SUPERIOR COURT (LA Riots) 32 CA4 481 [See: 42 USC 1981 etseq; CivC 51.7, 52; Susman v City 269 CA2 803; GovC 845]



------------



0821 Statutory immunity from liability for injuries sustained by persons engaging in hazardous recreational activities does not protect a school district against liability for injuries a student received during a soccer game that was part of a physical education class.



IVERSON v MUROC USD (Soccer Fracture) 32 CA4 218 [See: GovC 831.7; Acosta v LA USD 31 CA4 471, T/AT 2/95]



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0822 A public entity is immune from liability for natural conditions on its land and is not liable for injuries caused solely by the conduct of third persons on its land, and, therefore, is not liable for injuries that result from a combination of these two factors.



STATE v SUPERIOR COURT (Mountain Bikers) 32 CA4 325 [See: Hayes v State 11 C3 469; Pekarek v City 30 CA4 909, T/AT 1/95; GovC 831.2 831.4; Armenio v County 28 CA4 413, T/AT 10/94; Giannuzzi v State 17 CA4 462, T/AT 8/94]



------------



0823 Statutory immunity from liability for reporting suspected child abuse does not extend to conduct unrelated to the report, but so long as it did not entice a child to leave her parents or to remain away from them, a shelter to which a 15 year old child has voluntarily gone owes the child's parents no duty to send the child back to them or to inform them of the child's whereabouts.



ROBBINS v HOME (Girls' Shelter) 32 CA4 671 [See: PenC 11164 etseq; Thomas v Chadwick 224 CA3 813; James W v SuperCt 17 CA4 246, T/AT 9/93]



------------



0824 REVIEW DENIED A foster care provider is immune from liability on any claim for which the Foster Family Home and Small Family Home Fund (i.e., the Fund) is liable, unless the claim is first filed with the Fund; a claim filed with the State that does not indicate that a claim against the Fund is contemplated does not substantially comply with the requirement that a claim be filed with the Fund.



BECERRA v GONZALES (Foster Home Lockout) 32 CA4 584 [See: H&SC 1527; Hill v Newkirk 26 CA4 1047, T/AT 8/94; Santee v Santa Clara 220 CA3 702; GovC 810]



------------



0825 An insurer that closed its file on a collision claim because its insured said she had collected all her damages from a tortfeasor might have had proper cause to do so and, therefore, might have acted in good faith; if evidence of the insured's settlement with the tortfeasor is offered to show the insurer's good faith, it is not prohibited by the collateral source rule.



KARDLY v STATE FARM (Judicial Apology) 31 CA4 1746 [See: Kardly v State Farm 207 CA3 479; Twaite v Allstate 216 CA3 239]



------------



0826 DEPUBLISHED An insurer that has no duty to defend or indemnify but undertakes to defend under a reservation of rights, is not guilty of bad faith because it delayed payment of fees to the insured's attorney.



RICHARDSON v STATE FARM (Slow Pay) 32 CA4 1 [See: Regan v SuperCt 24 CA4 425, T/AT 3/94; Montrose v SuperCt 6 C4 287, T/AT 1/94; Love v Fire 221 CA3 1136; Gray v Zurich 65 C2 263]



------------



0827 REVIEW DENIED An insurer that settles a claim within the policy limits is not acting in bad faith, even though the settlement may be damaging to the insured's business reputation.



WESTERN v RELIANCE (Insured's Reputation) 32 CA4 14 [See: Security v SCIF 17 CA4 887; Barney v Aetna 185 CA3 966; Rothtrock v Ohio 233 CA2 616; Commercial v Safeway 26 C3 912]



------------



0828 REVIEW DENIED A plaintiff has no cause of action against a defendant's insurer for breach of the obligation to defend its insured; claims that, to manipulate plaintiff into having sexual intercourse with him, a priest misused information obtained while counseling plaintiff were so intertwined with claims of sexual misconduct that there was no coverage under the policy.



JANE D v ORDINARY MUT (Molesting Priest) 32 CA4 643 [See: Horace Mann v Barbara B 4 C4 1076, T/AT 5/93; JC Penney v MK 52 C3 1009]



------------



0829 The lien held by a workers' compensation carrier that intervened in the employee's action against a third party but did not actively participate in it should be reduced by the amount of the employee's litigation costs and attorney fees.



KINDT v OTIS ELEVATOR (Passive Beneficiary) 32 CA4 452 [See: LabC 3852, 3856; Hartwig v Zacky 2 CA4 1550; Crampton v Takegoshi 17 CA4 308, T/AT 9/94]



------------



0830 Prior to commencement of an action, service of an offer of compromise on a defendant's insurance carrier does not satisfy the requirement of CCP 998 that it be served on a party, and will not result in augmented costs if the offer is rejected and the plaintiff receives a more favorable judgment.



MOFFETT v BARCLAY (Compromise Service) 32 CA4 980 [See: CCP 998, 410.50(a); Rest2 Judgments 34; Tanner v Best 40 CA2 442]



------------



0831 REVIEW DENIED Plaintiff's knowledge that part of her breast implant had migrated to her arm and her belief that this resulted from her surgeon's negligence was sufficient to start the statute of limitations running on her claim against the manufacturer of the implant, even though plaintiff did not suspect that the problem resulted from defects in the implant.



BRISTOL-MYERS v SUPERIOR COURT (Migrating Implant) 32 CA4 959 [See: CCP 340.5, Jolly v Eli Lilly 44 C3 1103]



------------



0832 If plaintiff was ignorant of the facts and had no reason to investigate, defendant's concealment of its fraud for 19 years delayed the accrual of plaintiff's cause of action and prevented the statute of limitations from running.



PARSONS v TICKNER (Wait & See) 31 CA4 1513 [See: CCP 338; Ashworth v Mem Hosp 206 CA3 1046; Watts v Crocker 132 CA3 516; US Liab v Haidinger 1 C3 586]



------------



0833 Even though its main office is located in Arizona, defendant (Best Western International) is subject to California jurisdiction, because it is authorized to do business in California, has designated an agent for service of process in California, licenses approximately 295 entities in California to use its name and logo, advertises for those entities in California, and maintains a business office in California from which it solicits business for its affiliates.



HESSE v BEST WESTERN (Sales Office) 32 CA4 404 [See: Hanson v Denckla 357 US 235; Buckeye v SuperCt 71 C2 893; Koninklijke v SuperCt 107 CA2 495; Sklar v Princess 194 CA3 1202]



------------



0834 Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which specifically prohibits states from creating label requirements for products covered by the act, pre-empts state courts from hearing common law causes of action for inadequate label warnings.



LOUISIANA-PACIFIC v KOPPERS (FIFRA) 32 CA4 599 [See: Cipollone v Liggett 120 LEd2 407; US Const VI,2; 7 USC 136 etseq]



------------



0835 Communication between a litigant's attorney and a low-level former employee (viz., janitor) of an adverse-litigant corporation which was represented by counsel is not prohibited by the Rules of Professional Conduct and should not result in suppression of information thereby obtained.



CONTINENTAL v SUPERIOR COURT (Former Employee) 32 CA4 94 [See: Mitton v State Bar 71 C2 525; CA RofProfCond 2-100; Nalian v Nakano 6 CA4 1256; Bobele v SuperCt 199 CA3 708]



------------



0836 A trial court that was aware that a civil litigant's failure to appear at a status conference resulted from his incarceration in a state prison should not have imposed terminating sanctions.



WANTUCH v DAVIS (Incarcerated Litigant) 32 CA4 786 [See: Bounds v Smith 430 US 817]



------------

--------------------

*(T/AT III,8 - 4/95)

--------------------

------------



0837 REVIEW DENIED The operator of a hotel located adjacent to a beach and the ocean does not have a duty to warn hotel guests about hazards associated with swimming in the ocean.



PRINCESS HOTELS v SUPERIOR COURT (Acapulco Drowning) 33 CA4 645 [See: Swann v Olivier 22 CA4 1324, T/AT 4/94]



------------



0838 DEPUBLISHED For purposes of the statute withholding immunity from public entities for injuries occurring on a diving platform, the question of whether a pier is a diving platform does not depend on how the public uses it, but on how the public entities intend for it to be used.



STATE v SUPERIOR COURT (Diving Pier) 33 CA4 576 [See: GovC 831.7; Berry v State 2 CA4 688; Perez v City 27 CA4 1380, 9/94]



------------



0839 REVIEW DENIED It is proper to use the consumer expectation approach in an action based on the allegedly defective design of an automobile airbag, and plaintiff is not required to offer evidence that a better design was possible.



BRESNAHAN v CHRYSLER (Air Bag) 32 CA4 1559 [See: Greenman v Yuba 59 C2 57; Barker v Lull 20 C3 413; Soule v GM 8 C4 548, T/AT 11/94]



------------



0840 REVIEW GRANTED The manufacturer of a prescription drug may be held strictly liable for failure to give adequate warning of dangers that are known or reasonably knowable.



CARLIN v SUPERIOR COURT (Halcion) 32 CA4 1142[See: Barker v Lull 20 C3 413; Greenman v Yuba 59 C2 57; Brown v SuperCt 44 C3 1049; Anderson v Owens 53 C3 987]



------------



0841 A plaintiff who is unable to identify the substances that harmed him cannot establish by the traditional approach that defects in defendant's product caused plaintiff's harm, because it will be impossible to show that exposure to defendant's product was a substantial factor in producing the harm; plaintiff cannot rely on the alternate liability approach (Summers v Tice) to causation unless all possible tortfeasors are joined as defendants; plaintiff cannot rely on the market share approach unless the products involved are fungible.



SETLIFF v DU PONT (Unidentified Vapors) 32 CA4 1525 [See: Bromme v Pavitt 5 CA4 1487; Summers v Tice 33 C2 80; Pereira v Dow 129 CA3 865; Sindell v Abbott Labs 26 C3 588]



------------



0842 Plaintiff did not establish that a serologist's failure to testify accurately at plaintiff's trial for murder was a cause of plaintiff's conviction and death sentence, because plaintiff did not show that had the serologist testified accurately plaintiff probably would not have been convicted.



WILLIAMS v WRAXALL (Serologist) 33 CA4 120 [See: Budd v Nixen 6 C3 195; DiPalma v Seldman 27 CA4 1499, T/AT 9/94]



------------



0843 REVIEW DENIED Plaintiff can not recover damages for fear of cancer resulting from exposure to electro magnetic fields generated by defendant's power lines without establishing that such exposure is more likely than not to cause cancer; the Public Utilities Commission has the exclusive power to determine what electro magnetic fields permissibly may be generated by power lines, so liability cannot be imposed for generating electro magnetic fields within parameters established by the Public Utilities Commission.



SDGE v SUPERIOR COURT (EMFs) 32 CA4 1062 [See: Potter v Firestone 6 C4 965, T/AT 2/94; PUC 1759, 2106; Waters v PacTel 12 C3 1; Barnett v Delta 137 CA3 674]



------------



0844 REVIEW GRANTED A client's cause of action for attorney malpractice based on the attorney's failure to assert the client's medical malpractice claim within the period of limitations did not accrue, and the statute of limitations on the attorney malpractice claim did not begin to run, until the medical malpractice claim was rejected by an arbitrator.



MCELROY v BIDDISON (S/L on S/L) 32 CA4 1164 [See: CCP 340.6; Laird v Blacker 2 C4 606; Pleasant v Celli 18 CA4 841, T/AT 11/93; Finlayson v Sanbrook 10 CA4 1436, T/AT 1/93; ITT v Niles 9 C4 245, T/AT 2/95]



------------



0845 A client's claim for accountant malpractice based on the negligent preparation of tax returns does not accrue and the statute of limitations does not begin to run until the IRS issues a final assessment increasing the client's tax liability.



INTERNATIONAL v FEDDERSEN (IRS Audit) 9 C4 606 [See: Neel v Magana 6 C3 176; Budd v Nixen 6 C3 195; CCP 339; Laird v Blacker 2 C4 606; Schrader v Scott 8 CA4 1679; ITT v Niles 9 C4 245, T/AT 2/95]



------------



0846 REVIEW DENIED Ordinarily a complaint is not accepted for filing unless it is accompanied by the proper fee, but a clerk's promise to file the complaint immediately resulted in an extrinsic mistake, as a result of which the complaint should be deemed filed as of the time the promise was made.



MIRVIS v CROWDER (Extrinsic Mistake) 32 CA4 1684 [See: GovC 6100, 24350.5, 26820; Rappleyea v Campbell 8 C4 975; Johnson-Stovall v SuperCt 17 CA4 808, T/AT 10/93]



------------



0847 REVIEW DENIED While a title company is considering whether to pay a claim under the title policy, the running of the statute of limitations on an action to enforce the claim is equitably tolled.



FORMAN v CHICAGO TITLE (Equitable Toll) 32 CA4 998 [See: Prudential-LMI v SuperCt 51 C3 674; Tabachnick v Ticor 24 CA4 70; CCP 339(1)]



------------



0848 REVIEW GRANTED A cause of action for mesothelioma resulting from exposure to asbestos does not accrue and the statute of limitations does not begin to run until plaintiff suffers appreciable harm, and this occurs when cancer cells first appear in plaintiff's lungs.



BUTTRAM v OWENS-CORNING (Asbestos Accrual) 33 CA4 1009 [See: CivC 1431.2; Evangelatos v SuperCt 44 C3 1188]



------------



0849 Termination based on the employee's sexual orientation may be the subject of common law actions for termination in violation of public policy and for intentional infliction of emotional distress, but does not violate the Constitutional right of privacy.



LEIBERT v TRANSWORLD (Homosexual Discrimination) 32 CA4 1693 [See: Gay Law Students v PacTel 24 C3 458; Soroka v Dayton 235 CA3 654; LabC 1101, 1102, 1102.1; Tameny v ARCO 27 C3 167; Gantt v Sentry 1 C4 1083; Hill v NCAA 7 C4 1; Livitsanos v SuperCt 2 C4 744; Fermino v Fedco 7 C4 701; Accardi v SuperCt 17 CA4 341]



------------



0850 REVIEW DENIED Demotion and reduction in salary is not equivalent to constructive termination.



GIBSON v ARO (Demoted Manager) 32 CA4 1628 [See: Turner v Anheuser-Busch 7 C4 1238, T/AT 8/94]



------------



0851 REVIEW DENIED If an employer is immune from tort liability under the workers' compensation law, that immunity extends to a corporation of which the employer is a wholly owned subsidiary.



DONEY v TRW (Wholly Owned Subsidiary) 33 CA4 245 [See: LabC 3602; Privette v SuperCt 5 C4 689, T/AT 9/93]



------------



0852 REVIEW DENIED An action brought in a CA court under the federal Migrant and Seasonal Agricultural Worker Protection Act is not an action brought under CA law.



MARTINEZ v SCIF (AWPA) 32 CA4 1589 [See: 29 USC 1801 etseq; Adams v Barrett 494 US 638; Blumberg v Guarantee 192 CA3 1286; Nabisco v Transport 143 CA3 831; La Jolla B&T v Industrial 9 C4 27, 1/95]



------------



0853 REVIEW DENIED A liability carrier's obligation to defend depends on allegations of the complaint and facts known to the carrier at the time the complaint is tendered to it, so the carrier may not delay decisions about whether to defend until after completing discovery in the underlying coverage dispute.



HASKEL v SUPERIOR COURT (Discovery Delay) 33 CA4 963 [See: Montrose v SuperCt 6 C4 287; Gray v Zurich 65 C2 263; Horace Mann v Barbara B 4 C4 1076]

------------



0854 REVIEW DENIED A clause in an automobile liability policy excluding coverage for claims by "you [the insured]" did not exclude coverage for claims by one named insured against another for injuries that occurred when the claimant was a passenger and the co-insured was driving.



DE MAY v INTERINSURANCE (Ambiguous Insured) 32 CA4 1133 [See: American Star v Insurance 232 CA3 1320; Delgado v Heritage 157 CA3 262; State Farm v Jacober 10 C3 193]



------------



0855 REVIEW DENIED A contract providing for attorney fees to the prevailing party in litigation arising under it requires the award of attorney fees to the prevailing party whether the action arising under the contract sounds in tort or in contract, but if tort and contract actions are voluntarily dismissed prior to trial, there is no prevailing party, and attorney fees should not be awarded.



JUE v PATTON (No Fees) 33 CA4 456 [See: CCP 1032, 1021, 1033.5, 1717; Xuereb v Marcus 3 CA4 1338; Lerner v Ward 13 CA4 155, T/AT 4/93; Palmer v Shawback 17 CA4 296, T/AT 9/93]



------------



0856 REVIEW DENIED In determining whether fees charged by an attorney were unconscionable, rates the attorney paid to a contract attorney are not relevant, since the determination depends on the prevailing rate in the community rather than on the attorney's profit margin.



SHAFFER v SUPERIOR COURT (Unconscionable Fees) 33 CA4 993 [See: CCP 2017; CA Const I,1; Valley Bank v SuperCt 15 C3 652; RofPC 4-200; Margolin v Regional 134 CA3 999]



------------



0857 REVIEW GRANTED Under the common fund doctrine, a county hospital's lien against a patient's tort recovery should be reduced by the hospital's pro rata share of the patient's attorney fees connected with that recovery.



CITY v SWEET (Reduction of Lien) 32 CA4 1483 [See: Alyeska v Wilderness 421 US 240; Lindsey v County 109 CA3 933; GovC 23004.1; Kindt v Otis 32 CA4 452, T/AT 3/95]



------------



0858 REVIEW DENIED In the absence of new or different facts, circumstances, or law, a court lacks jurisdiction under CCP 1008 to modify, amend, or revoke a previously entered order.



GILBERD v TRANSIT (Unauthorized Rehearing) 32 CA4 1494 [See: CCP 1008; Morite v SuperCt 19 CA4 485]



------------



0859 REVIEW DENIED A vexatious litigant has no reasonable probability of success, and is therefore subject to requirements of the vexatious litigant statute, if the court finds that s/he can not make out a prima facie case; in determining the amount of security required of a vexatious litigant, the court need not consider the vexatious litigant's financial condition, even if s/he is proceeding in forma pauperis.



DEVEREAUX v LATHAM & WATKINS (Vexatious Paralegal) 32 CA4 1571 [See: CCP 391.3; Hung v Wang 8 CA4 908, T/AT 10/92]



------------

--------------------

*(T/AT III,9 - 5/95)

--------------------

------------



0860 Unless the landlord retained control over the premises or had actual or constructive knowledge of the conditions, a landlord does not have a duty to protect outsiders from damage resulting from dangerous conditions created by the tenant after the landlord relinquished possession to the tenant.



RESOLUTION v ROSSMOOR (Landholder's Duty) 34 CA4 93 [See: Mora v Baker 210 CA3 771; Bisetti v United 174 CA3 643; Swanberg v O'Mectin 157 CA3 325]



------------



0861 REVIEW DENIED Although the risk of being struck by a driven ball is inherent in the game of golf, the operator of a golf course owes players a duty of reasonable care to protect against it.



MORGAN v FUJI (A/R Golf Ball) 34 CA4 127 [See: Knight v Jewett 3 C4 296; Ratcliff v SD Baseball 27 CA2 733]



------------



0862 REVIEW DENIED In deciding whether asbestos products are defective in design, it is appropriate to apply the consumer expectation approach; state of the art is irrelevant in determining what the reasonable consumer would have expected of a product.



MORTON v OWENS-CORNING (State of Art Asbestos) 33 CA4 1528 [See: Greenman v Yuba 59 C2 57; Barker v Lull 20 C3 413; Soule v GM 8 C4 548, T/AT 11/94; Sparks v Owens 32 CA4 461, T/AT 3/95; Anderson v Owens 53 C3 987]



------------



0863 DEPUBLISHED A trial court's order granting a new trial should be affirmed so long as there is substantial evidence to support it; in ordering a new trial, limiting the issues to be tried is an abuse of the trial court's discretion if there is a possibility of prejudice to either side; retrial of a punitive damages claim cannot be limited to the amount of damages; punitive damages may be awarded upon clear and convincing evidence of despicable conduct; despicable conduct may consist of a series of actions no one of which would be despicable alone; the intent to inflict economic damage may result in liability for emotional distress, even though no economic damage resulted; the conduct of an independent adjuster does not justify a punitive damages award against the carrier that employed him/her, unless the carrier directed, knew, or approved of the adjuster's acts; an independent adjuster cannot be liable for breaching the covenant of good faith and fair dealing implied in the insurance policy.



STONE v NEW ENGLAND INS (Anti Semitic Adjuster) 33 CA4 1175 [See: Foley v Interactive 47 C3 654; CivC 3294, 3295(d); Stewart v Truck 17 CA4 468, T/AT 10/93; Martinides v Mayer 208 CA3 1185; Jiminez v Sears 4 C3 379; Liodas v Sahadi 19 C3 278]



------------



0864 REVIEW DENIED A witness who is not a CA resident at the time of service cannot be compelled to appear by service of a subpoena or notice on the witness's attorney.



AMOCO v UNDERWRITERS (Non Resident Subpoena) 34 CA4 554 [See: CCP 1987, 1989; Twin Lock v SuperCt 52 C2 754]



------------



0865 DEPUBLISHED An insurance carrier cannot validly assign to a tortfeasor its subrogation rights in an insured's claim against that tortfeasor.



LYSNE v BIGHAM (Subrogation Assignment) 33 CA4 1756 [See: City v Sweet 32 CA4 1483, T/AT 4/95; Crampton v Takegoshi 17 CA4 308, T/AT 9/93]



------------



0866 Statements are not capable of being false, and therefore cannot be the basis of defamation liability, if the average member of the community to which they were published would recognize them as part of a parody and not assertions of fact.



COUCH v SAN JUAN USD (Multiple Choice Madness) 33 CA4 1491 [See: Hustler v Falwell 485 US 46; Weller v ABC 232 CA3 991; SF Bay Guardian v SuperCt 17 CA4 655, T/AT 10/93]



------------



0867 REVIEW DENIED An attorney's threats of litigation are not protected by the litigation privilege unless the threatened litigation was being contemplated seriously and in good faith.



LAFFER v LEVINSON (Contemplated Litigation) 34 CA4 117 [See: CivC 47; Silberg v Anderson 50 C3 205; Fuhrman v CA Satellite 179 CA3 408; Financial v Wilburn 189 CA3 764; Herzog v "A" Company, 138 CA3 656]



------------



0868 REVIEW GRANTED It is an unlawful business practice, and therefore unfair competition, to sell products containing saccharine in violation of a federal law requiring the posting of warnings, and a plaintiff acting in the interests of the general public has standing to sue; such a claim is not pre-empted by federal law.



REESE v PAYLESS (Saccharine Warning) 34 CA4 19 [See: B&PC 17200-17204; 21 USC 343(p); 21 CFR 101.11; Consumers Union v Fisher 208 CA3 1433; People v McKale 25 C3 626]



------------



0869 A person performing court-ordered community service in lieu of paying a traffic fine is an employee of the public entity for which the service is being performed and is restricted to workers' compensation remedies against the public entity for job-related injuries.



ARRIAGA v COUNTY OF ALAMEDA (Community Service) 9 C4 1055 [See: Arriaga v County T/AT 4/94; LabC 3600; CSU Fullerton v WCAB 16 CA4 1819]



------------



0870 In a wrongful termination action, a plaintiff who, on the ground that the employer might retaliate, seeks protection from discovery by the employer of the name of a former fellow employee who obtained evidence against the employer has the burden of showing that retaliation against the former fellow employee is likely.



GONZALEZ v SUPERIOR COURT (Fear of Retaliation) 33 CA4 1539 [See: CCP 2017; Smith v SuperCt 189 CA2 6; Davies v SuperCt 36 C3 291; Bridgestone v SuperCt 7 CA4 1384, T/AT 9/92]



------------



0871 REVIEW DENIED If a decision not to promote an employee is based on gender discrimination, a cause of action accrues, and the statute of limitations begins to run, when the employee is informed of the decision; an employee is conditionally terminated when informed that s/he will be discharged unless s/he performs a particular act, and is not constructively discharged when s/he subsequently resigns rather than perform the specified act.



REGENTS v SUPERIOR COURT (Termination Accrual) 33 CA4 1710 [See: Delaware v Ricks 449 US 250; Accardi v SuperCt 17 CA4 341, T/AT 9/93; Turner v Anheuser-Busch 7 C4 1238, T/AT 8/94; GovC 12960; CCP 340]



------------



0872 REVIEW DENIED A court lacks jurisdiction to relieve a person making a claim against a public entity of the filing requirements of the Tort Claims Act unless an application for leave to file late was presented to the public entity within a year from the time the claim accrued; an application for late filing is presented on the date it is mailed if it is properly addressed, but is presented on the date received if it is not properly addressed.



MUNOZ v STATE (Late Claim) 33 CA4 1767 [See: GovC 810 - 996.6; Williams v Horvath 16 C3 834; Ebersol v Cowan 35 C3 427; Nguyen v Medical Center 8 CA4 729, T/AT 10/92]



------------



0873 Under a construction defects liability policy, coverage is triggered upon the manifestation of damage, and no coverage is afforded by policies not in effect on the date the damage first manifested itself.



OHIO CAS v HARTFORD (Manifestation Trigger) 33 CA4 1556 [See: Fireman's v Aetna 223 CA3 1621; Pines v Industrial 5 CA4 714; Montrose v Admiral 30 CA4 1474 rev grtd 5/21/92; Stonewall v City 29 CA4 98 rev grtd 8/27/92; Zurich v Transamerica 29 CA4 1240 rev grtd]



------------



0874 REVIEW DENIED A group health insurance plan purchased by an employer for the benefit of employees is an "employee benefit plan" as defined by ERISA, and so an employee's claim against an insurance broker for negligently inducing an employer to purchase a particular plan was pre-empted by federal law.



HOLLINGSHEAD v MATSEN (ERISA Pre-emption) 34 CA4 525 [See: 29 USC 1001 etseq; Ingersoll-Rand v McClendon 498 US 133; Marshall v Bankers 2 C4 1045]



------------



0875 REVIEW DENIED A Georgia insurance company insuring a Georgia business against liability for acts committed in California has sufficient minimum contacts with the state to be subject to California jurisdiction in litigation based on the carrier's denial of a duty to defend a claim arising in California.



SOUTHEASTERN v SOUTHERN GUAR (Non Resident Insurer) 34 CA4 1 [See: CCP 410.10; Cornelison v Chaney 16 C3 143; Int'l Shoe v Washington 326 US 310; Watson v Employers 348 US 66]



------------



0876 After voluntarily dismissing his/her own case without prejudice, a plaintiff may timely refile, but if cross claims from the original action are still pending, the refiling must be as a cross claim to those cross claims, and if the time to file a cross complaint has run out, plaintiff must seek leave of the court to file late.



CARROLL v IMPORT MOTORS (Compulsory Cross Complaint) 33 CA4 1429 [See: CCP 426.30, 426.50; Burke v Chamberlin 51 CA2 419; Currie v Bowen 136 CA3 774]



------------



0877 A party may not demur to a portion of a cause of action, but in appropriate circumstances a substantive defect which appears on the face of a complaint but involves only a portion of a cause of action may be the subject of a motion to strike.



PH II v SUPERIOR COURT (Partial Demurrer) 33 CA4 1680 [See: Grieves v SuperCt 157 CA3 159; Lodi v Lodi 173 CA3 628]

------------



0878 CCP 3051 establishes the lien rights of veterinarians rendering veterinary services to livestock, and CCP 3080 establishes the lien rights of all other persons providing all other services to livestock.



JAKUBAITIS v FISCHER (Horse Lien) 33 CA4 1601 [See: Freedom v OC Employees 6 C4 821; CCP 3051, 3080]



------------

--------------------

*(T/AT III,10 - 6/95)

--------------------

------------



0879 REVIEW DENIED A landlord who knows that a month-to-month tenant keeps vicious dogs and that they frequently run at large owes a duty of reasonable care to persons using public streets in the surrounding area; denials of the truth, even though not made under oath, are circumstantial evidence of guilty knowledge.



DONCHIN v GUERRERO (Tenant's Dog) 34 CA4 1832 [See: Resolution v Rossmoor 34 CA4 93, T/AT 5/95; Portillo v Aiassa 27 CA4 1128, T/AT 9/94; Uccello v Laudenslayer 44 CA3 504; People v Mendoza 192 CA3 667; People v Morgan 87 CA3 59; People v Underwood 61 C2 113; People v Walker 99 CA2 238; People v Turner 86 CA2 791; People v Flores 269 CA2 666]



------------



0880 DEPUBLISHED While giving a tennis lesson, an instructor owes a student a duty of reasonable care to protect against inherent risks of tennis, so an action by the student against the instructor is not barred by primary assumption of the risk.



FIDOPIASTIS v HIRTLER (A/R Tennis) 34 CA4 1458 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Tan v Goddard 13 CA4 1528, T/AT 5/93; Galardi v Seahorse 16 CA4 817, T/AT 8/93; Morgan v Fuji 32 CA4 127, T/AT 5/95]



------------



0881 When a married couple consults an attorney about one spouse's personal injury case, the attorney owes the other spouse a duty to advise about the right to sue for loss of consortium.



MEIGHAN v SHORE (Consortium Advice) 34 CA4 1025 [See: Lucas v Hamm 56 C2 583; Thing v LaChusa 48 C3 644; Rodriguez v Bethlehem 12 C3 382]



------------



0882 An attorney who prepared a partnership agreement for two persons who were already clients, but who effectively limited representation of the partnership to matters involving common goals of the partners, did not thereby engage in a conflict of interest from which negligence could be inferred.



BUEHLER v SBARDELLATI (Limited Representation) 34 CA4 1527 [See: Truck v Fireman's 6 CA4 1050; Anderson v Eaton 211 C 113; Klemm v SuperCt 75 CA3 893; Nichols v Keller 15 CA4 1672, T/AT 9/93]



------------



0883 REVIEW DENIED An attorney's negligent tax advice that results in IRS assessment of deficiency and causes the client to institute a US Tax Court proceeding to challenge the assessment does not cause actual harm, and the statute of limitations on the client's malpractice action does not begin running, until the Tax Court makes a final determination.



HENRY v MONAGHAN (S/L Tax Advice) 34 CA4 993 [See: CCP 340.6; IRC 6213(a); Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; International Engine v Feddersen 9 C4 606 ]



------------



0884 In negligence claims against them, blood banks are held to the professional standard, and cannot be liable for doing what all other blood banks do; a health care practitioner is not liable under the informed consent theory for failing to tell the patient what the patient already knew.



SPANN v IRWIN (Bad Blood) 34 CA4 644 [See: Osborn v Irwin 5 CA4 234; Wilson v Irwin 14 CA4 1315, T/AT 6/93; Cobbs v Grant 8 C3 229; Arato v Avedon 5 C4 1172, T/AT 11/93]



------------



0885 Statements contained in letters written by a litigant to his/her own attorney and to enforcement authorities and accusing the adverse attorney of dishonesty in connection with the litigation are absolutely privileged and can not result in liability.



PASSMAN v TORKAN (Crooked Attorneys) 34 CA4 607 [See: CivC 47; Silberg v Anderson 50 C3 205; Williams v Taylor 129 CA3 745; Fenelon v SuperCt 223 CA3 1476; Hunsucker v Sunnyvale 23 CA4 1498, T/AT 5/94]



------------



0886 REVIEW DENIED The privilege to publish information about newsworthy events and matters of public interest, and the resulting immunity from liability for misappropriation of identity, applies to profit-making publications; a newspaper has a constitutional right to promote itself by reproducing and distributing its articles and photographs that were originally protected by the privilege.



MONTANA v SAN JOSE MERCURY NEWS (Montana Poster) 34 CA4 790 [See: Roberson v Rochester 171 NY 538; CivC 3444; Dora v Frontline 15 CA4 536, T/AT 7/93]



------------



0887 Statutory immunities do not protect public entities against liability imposed by the VehC for injuries resulting from the negligent operation of motor vehicles.



THOMAS v CITY OF RICHMOND (Run-over Runaway) 9 C4 1154 [See: GovC 815.2(a)&(b), 810, 845.8; VehC 17001, 17004, 17004.7; Kisbey v State 36 C3 415; Brummett v County 21 C3 880; Duarte v City 100 CA3 648; Hooper v City 212 CA3 442]



------------



0888 The presence of a mountain lion in a state park is a natural condition, to which statutory rules immunizing pubic entities from liability for natural conditions of their property apply.



ARROYO v STATE (Mountain Lion) 34 CA4 755 [See: GovC 831.2; Ex Parte Maier 103 C 476; Mercer v State 197 CA3 158; McCauley v City 190 CA3 981]



------------



0889 REVIEW DENIED A letter advising a public entity that an attorney has been retained to represent a client in connection with an injury sustained on a specified date does not substantially comply with notice requirements of the Government Tort Claims Act.



GREEN v STATE (Notice Waiver) 34 CA4 1348 [See: GovC 810 etseq, 910.8, 911, 911.3(b); Phillips v Desert Hosp 49 C3 699]



------------



0890 Enforcement authorities that fail to detain or arrest a parolee whom the authorities know has committed parole violations, do not owe a duty to potential victims of the parolee; failure to arrest or detain a parolee does not violate Constitutional rights of subsequent victims of the parolee.



FLEMING v STATE (Parole Violator) 34 CA4 1378 [See: GovC 845.8, 846, 815.6; PenC 3059; 42 USC 1983; Thompson v County 27 C3 741; Brenneman v State 208 CA3 812; Freeman v Ferguson 911 F2 52; LW v Grubbs 974 F2 119]



------------



0891 California's requirement that evidence of defendant's financial worth be offered in a claim for punitive damages is a rule of substantive law and, therefore, not applicable to a claim arising under federal law.



CHAVEZ v KEAT (Wrong House) 34 CA4 1406 [See: Adams v Murakami 54 C3 105; Bennis v Gable 823 F2 723; Woods-Drake v Lundy 667 F2 1198; Pacific Mut v Haslip 499 US 1]



------------



0892 REVIEW DENIED The California statute that prevents the statute of limitations from being tolled in a minor's claim against a public entity does not apply to claims under the federal Civil Rights Act.



CITY OF HUNTINGTON PARK v SUPERIOR COURT (Civil Rights Act Tolling) 34 CA4 1293 [See: CCP 340, 352; May v Enomoto 633 F2 164; Doe v Petaluma CSD 830 FS 1560; Williams v Horvath 16 C3 834; Felder v Casey 487 US 131; USConst VI,2]



------------



0893 Plaintiff's supervisors can be held personally liable for violating the sexual harassment provisions of the FEHA.



MATTHEWS v SUPERIOR COURT (Who's A Person) 34 CA4 598 [See: GovC 12900 etseq; Kelly-Zurian v Wohl 22 CA4 397, T/AT 3/94; Mogilefsky v SuperCt 20 CA4 1409, T/AT 2/94; Accardi v SuperCt 17 CA4 341, T/AT 9/93; Page v SuperCt 31 CA4 1206, T/AT 2/95]



------------



0894 Retroactive application should be given to the Privette rule, which prevents vicarious liability from being imposed under the peculiar risk doctrine in a claim for job-related injuries against the employer of the independent contractor by whom plaintiff was employed.



WHITFORD v SWINERTON (Same Result) 34 CA4 1054 [See: Privette v SuperCt 5 C4 689, T/AT 9/93; Owens v Giannetta 23 CA4 1662, T/AT 5/94; Smith v ACandS 31 CA4 77, T/AT 2/95]



------------



0895 REHEARING GRANTED The intoxication of the driver of a vehicle that collided with plaintiff's vehicle is not relevant to plaintiff's claim against the vehicle's manufacturer, alleging products liability on the basis of crashworthiness.



SMOTHERS v GMC (Irrelevant Intoxication) 34 CA4 629 [See: EvC 352; Cain v State Farm 47 CA3 783]



------------



0896 An insurance policy that by its terms protects the insured against claims for "damages" caused by "unfair competition" arising from "advertising activity," does not cover claims for unfair competition brought under Idaho unfair business practices statutes.



A MARK v CIGNA (Idaho Business Practices) 34 CA4 1179 [See: Bank of the West v SuperCt 2 C4 1254, T/AT 9/92]



------------



0897 A nonsettling defendant who opposes a good faith settlement motion is entitled to see the settlement agreement, in spite of the settlors' claim that confidential terms in the agreement do not affect the non-settling defendant's rights.



MEDIPLEX v SUPERIOR COURT (Confidential Settlement) 34 CA4 748 [See: CCP 877.6; Radford v SuperCt 216 CA3 1418; Alcal v SuperCt 8 CA4 1121, T/AT 10/92]



------------



0898 In deciding a motion brought under CCP 473 seeking to vacate a dismissal previously entered for failure to comply with discovery orders, in view of a previously filed declaration blaming the neglect that led to the dismissal on illness by the plaintiff, the trial court should have ignored a subsequent declaration in which the plaintiff's attorney attempted to shift the blame to himself, and should have denied the motion.



TODD v THRIFTY (Shifting Blame) 34 CA4 986 [See: CCP 473; Billings v Health Plan 225 CA3 250; Rogalski v Nabers 11 CA4 816, T/AT 2/93]



------------



0899 CCP 473, which requires the court to vacate dismissals resulting from attorney neglect, does not apply to discretionary dismissals under CCP 583.410 based on the failure diligently to prosecute.



PELTIER v MCCLOUD (Discretionary Dismissal) 34 CA4 1809 [See: Tustin v Wehage 27 CA4 1557; Graham v Beers 30 CA4 1656; CCP 583.410, 473]



------------



0900 CCP 473, which requires the court to vacate dismissals resulting from attorney neglect, applies to discretionary dismissals under CCP 583.410 based on the failure diligently to prosecute.



FLEMING v GALLEGOS (Discretionary Dismissal) 23 CA4 68 [See: CCP 583.410, 473]



------------



0901 NAME CORRECTED Because of the informal nature of the proceedings, determinations made in actions brought under the Small Claims Act should not have the effect of collateral estoppel.



ROSSE v DeSOTO (Informal Proceeding) 34 CA4 1047 [See: Sanderson v Niemann 17 C2 563; Perez v City 27 C3 875; Houghtaling v SuperCt 17 CA4 1128]

------------



0902 The coach portion of a motorhome is subject to the provisions of the Song-Beverly Consumer Warranty Act.



NATIONAL RV v FOREMAN (RV Lemon) 34 CA4 1072 [See: CivC 1790 etseq; Kwan v Mercedes-Benz 23 CA4 174, T/AT 4/94]



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--------------------

*(T/AT III,11 - 7/95)

--------------------

------------



0903 In clearing out a public park at closing time, a police officer who ordered plaintiff and other teenagers to leave immediately in the pickup truck driven by one of them did not owe plaintiff a duty to avoid exposing her to the risks of riding in the back of a pickup truck.



DUTTON v CITY OF PACIFICA (Pickup Bed) 35 CA4 1171 [See: Rowland v Christian 69 C2 108; Thompson v County 27 C3 741; Peterson v SFCCD 36 C3 799]



------------



0904 DEPUBLISHED The operators of a late-night restaurant in a high crime area was on constructive notice of incidents of violence in the neighborhood and owed patrons a duty of reasonable care to provide security measures in its unattached parking lot.



PHILLIPS v PERILS OF PAULINE (Parking Lot Attack) 35 CA4 1510 [See: Phillips v Perils of Pauline T/AT 9/94; Ann M v Pacific Plaza 6 C4 666, T/AT 2/94; Pamela W v Millsom 25 CA4 950, T/AT 7/94]



------------



0905 A real estate broker handling the sale of a residence owed persons subsequently attending a party at the residence no duty to warn the purchaser about defects in the realty.



FSR v SUPERIOR COURT (Realtor's Duty) 35 CA4 69 [See: Glanzer v Shepard 233 NY 236; Bily v Arthur Young 3 C4 370, T/AT 11/92]



------------



0906 In drafting a will for a client, the duty that an attorney owes to beneficiaries named by the client does not include a duty to make diligent attempts to have the client execute the will.



RADOVICH v LOCKE-PADDON (Unexecuted Will) 35 CA4 946 [See: Biakanja v Irving 49 C2 647; Lucas v Hamm 56 C2 583; Heyer v Flaig 70 C2 223]



------------



0907 DEPUBLISHED In a malicious prosecution claim against attorneys, allegations that the original attorney failed to investigate the facts before filing the underlying action and that an attorney who substituted into the case failed to investigate the facts before continuing to prosecute the action are sufficiently to allege malice.



SLATER v DURCHFORT (Failure to Investigate) 35 CA4 1718 [See: Tool Research v Henigson 46 CA3 675; Norton v Hines 49 CA3 917; Sheldon Appel v Albert 47 C3 863]



------------



0908 The fact that an attorney representing a wife in contested marital dissolution was in the process of forming a law partnership with an attorney who was simultaneously representing the husband justified the conclusion that the attorney was acting under a conflict of interest that violated the duties to the client; expert testimony is not required in an action for breach of an attorney's fiduciary duties; an attorney's failure to perform research before advising a client about an area of rapidly changing law is sufficiently within the jury's ken to make expert testimony unnecessary to establish that the attorney failed to act reasonably.



STANLEY v RICHMOND (Partner Conflict) 35 CA4 1070 [See: Wright v Williams 47 CA3 802; Wilkinson v Rives 116 CA3 641; Goebel v Lauderdale 214 CA3 1502; Pierce v Lyman 1 CA4 1093; Mirabito v Liccardo 4 CA4 41]



------------



0909 Provisions of the Health & Safety Code applicable to physicians providing "emergency medical coverage" apply only to physicians who are regularly assigned to the emergency department of a hospital or other acute care facility.



MIRANDA v NATIONAL (Emergency Medical Coverage) 35 CA4 894 [See: H&SC 1799.110; Jutzi v County 196 CA3 637; Zavala v Board 16 CA4 1755, T/AT 9/93; James v St Elizabeth 30 CA4 73, T/AT 12/94]



------------



0910 CCP provisions requiring the exchange of declarations of expert witnesses retained by a party to testify at trial do not apply to the plaintiff's treating physician whom plaintiff intends to call as an expert.



HUNTLEY v FOSTER (Retained Expert) 35 CA4 753 [See: CCP 2034; Hurtado v Western Medical 222 CA3 1198]



------------



0911 The Just Compensation Clause of the state Constitution does not require compensation for damage to realty resulting from a reasonable exercise of the state's police power.



CUSTOMER CO v CITY OF SACRAMENTO (Tear Gas) 10 C4 368 [See: Customer v City, T/AT 11/93; CaConst I, 19; GovC 820.2, 821.8; PenC 836; Miller v City 208 C 74; Yee v City 141 CA3 917; US v Caltex 344 US 149]



------------



0912 A lease that gives the landlord a right to control the conduct of the tenant does not make the tenant an independent contractor of the landlord unless the right of control is inconsistent with the ordinary landlord-tenant relationship; a landlord is not vicariously liable under the peculiar risk doctrine for the tenant's torts unless the tenant is also the landlord's independent contractor.



BOSTROM v COUNTY (Wrong Fuel) 35 CA4 1654 [See: GovC 816, 815.4 ; Stanford v City 6 C3 870; White v Uniroyal 155 CA3 1]



------------



0913 If circumstances or a trial judge's conduct would lead the reasonable person to entertain doubts about the judge's impartiality, the judge should be disqualified; the appellate court can reverse the judgment of a trial judge on the ground of bias, even though no assertion of bias was made in the trial court.



CATCHPOLE v BRANNON (Gender-biased Judge) 36 CA4 237 [See: Webber v Webber 33 C2 153; In re Marriage of Iverson 11 CA4 1495; Yagman v Republic 987 F2 622; CCP 170.1(c)]



------------



0914 REVIEW DENIED If, when applying for employment, an employee falsely represented that s/he had never been convicted of a felony, that misrepresentation justifies summary judgment for the employer in the employee's wrongful termination claim, even though evidence of the misrepresentation was acquired after the employee was terminated for other reasons, if, by statute, conviction of a felony would have disqualified the employee from the subject employment and would have made the employer ineligible for government contracts.



CAMP v JEFFER (After-acquired Evidence) 35 CA4 620 [See: Cooper v Rykoff 24 CA4 614, T/AT 6/94; McKennon v Nashville 115 SCt 879]



------------



0915 If condoned by the employer, horseplay on the job is within the scope of employment, and for injuries that result, workers' compensation provides the exclusive remedy against the employer or co-employees.



OLIVA v HEATH (Horseplay) 35 CA4 926 [See: LabC 3600 etseq; Argonaut v WCAB 247 CA2 669; Saala v McFarland 63 C2 124]



------------



0916 REVIEW GRANTED A trial court's refusal to entertain defendant's motion for retrial on the issue of punitive damages is a denial of due process that entitles the defendant to a new trial, unless plaintiff consents to accept a remittitur of the original judgment omitting the award of punitive damages.



FLEMING v IMPERIAL (Puni's Retrial) 35 CA4 1160 [See: CivC 3295(d); Pacific v Haslip 499 US 1; TXO v Alliance 113 SCt 2711; Honda v Oberg 114 SCt 2331]



------------



0917 No award for punitive damages can be made in the absence of an award of compensatory damages or their equivalent.



CHEUNG v DALEY (Puni's Only) 35 CA4 1673 [See: CivC 3294; Mother v Fox 10 C2 203; Kizer v County 53 C3 139; Potter v Firestone 6 C4 965, T/AT 2/94]



------------



0918 The Unfair Insurance Practices Act does not supersede or eliminate remedies created by the Cartwright Act and Unfair Competition Act.



MANUFACTURERS v SUPERIOR COURT (Settlement Annuities) 10 C4 257 [See: B&PC 16720 etseq, 17200 etseq; InsC 704, 790, 10433 etseq, 12900 etseq; Moradi-Shalal v Fireman's 46 C3 287; Chicago Title v Great Western 69 C2 305]



------------



0919 REVIEW DENIED An uninsured motorist provision that required physical contact with a hit and run vehicle did not cover injuries caused by a bullet fired from a vehicle.



STATE FARM v YANG (Uninsured Shooter) 35 CA4 563 [See: InsC 11580.2; Inter-Ins v Lopez 238 CA2 441; Page v INA 3 CA3 121; Barnes v Nationwide 186 CA3 541; Pham v Allstate 206 CA3 1193]



------------



0920 An insured who owns several vehicles -- each covered by a separate policy issued by the same carrier and providing that its underinsured motorist coverage does not apply to injuries sustained while riding in a vehicle owned by the insured but not covered by the policy -- is entitled to make an uninsured motorist claim only under the policy covering the vehicle in which the insured was riding when injured by an uninsured motorist.



SUTTON v FARMERS (Highest Limit) 35 CA4 1800 [See: InsC 11580.2; Public v Mitchell 173 CA3 814; Harrison v California 56 CA3 657; Hartford v Cancilla 28 CA4 1305, T/AT 11/94]



------------



0921 REVIEW DENIED In insurance coverage litigation between an insured that did business in California and insurers that wrote most of their policies in California, the trial court abused its discretion by granting the insurers' motion to dismiss because of forum non conveniens on the ground that all parties had their principal offices outside the state.



FORD v INA (Convenient Enough) 35 CA4 604 [See: Appalachian v SuperCt 162 CA3 427]



------------



0922 DEPUBLISHED Whether a settlement was made in good faith depends on what the parties knew at the time the settlement was made, so it is an abuse of discretion for a trial court to set aside its order approving a good faith settlement on the ground of newly discovered evidence.



FORD v SUPERIOR COURT (New Evidence) 35 CA4 997 [See: CCP 877.6, 1008; Tech-Bilt v Woodward-Clyde 38 C3 488]



------------



0923 In a construction defect case, a cross-defendant who settles with a cross-complainant, but not with the plaintiff, is entitled to the benefits of the good faith settlement provisions.



KAOM v SUPERIOR COURT (Cross Settlement) 35 CA4 549 [See: CCP 877.6; Arizona Pipeline v SuperCt 22 CA4 33, T/AT 3/94; Alcal v SuperCt 8 CA4 1121, T/AT 10/92; Tech-Bilt v Woodward-Clyde 38 C3 488]



------------



0924 REVIEW DENIED In allocating what portions of a settlement were for economic and non-economic damages, the trial court should apply the apportionment contained in the special verdict rendered by a jury in the trial of the plaintiff's claim against non-settling defendants.



GREATHOUSE v AMCORD (Settlement Apportionment) 35 CA4 831 [See: CCP 877; Espinoza v Machonga 9 CA4 268, T/AT 11/92; Regan v SuperCt 21 CA4 1685, T/AT 3/94; Erreca's v SuperCt 19 CA4 1475, T/AT 12/93]



------------



0925 CCP provisions permitting the court to enter judgment according to the terms of a stipulation of settlement on the record made by the parties does not apply unless the stipulation is made or signed by the parties themselves, rather than by their attorneys.



LEVY v SUPERIOR COURT (Party's Signature) 10 C4 578 [See: CCP 664.6; Haldeman v Boise Cascade 176 CA3 230; Gallo v Getz 205 CA3 329; Diaz v May 15 CA4 1268, T/AT 7/93]



------------



0926 REVIEW DENIED If defendant's papers in support of the motion for summary judgment were not sufficient to negate an element of the plaintiff's cause of action, the burden did not shift to plaintiff to establish that there was a triable issue, but if plaintiff's papers in opposition to the motion negated an element of the plaintiff's cause of action, the burden of showing that a triable issue existed did shift to the plaintiff.



VILLA v MCFERREN (Shifting Burdens) 35 CA4 733 [See: CCP 437c; Union Bank v SuperCt 31 CA4 573, T/AT 2/95; Celotex v Catrett 477 US 317]



------------



0927 When an appellate court awards costs to one of the parties to an appeal without further direction, the trial court may not apportion those costs among the opposing parties; a party seeking such apportionment must apply to the appellate court.



RAMIREZ v ST PAUL (Apportionment of Costs) 35 CA4 473 [See: CA RofC 26; Schwartz v Schwartz 268 CA2 685; Est of Miller 259 CA2 554; Wilson v Sharp 175 CA2 691; Lavine v Jessup 175 CA2 136; Weck v County 89 CA2 278; Paine v Bank 60 CA2 621]



------------



0928 CCP 12a, which extends the time period for performing an act when the last day falls on a holiday, is applicable to the 30-day time limit within which to file a complaint after service of an arbitration award in an attorney fee dispute.



McAVOY v LERER (Holiday Extension) 35 CA4 1128 [See: CCP 12a; B&PC 6204, 6203; DeLeon v BART 33 C3 456; Humes v MarGil 174 CA3 486; Ystrom v Handel 205 CA3 144]



------------



0929 Under the Song-Beverly Consumer Warranty Act, cars sold with a balance remaining on the manufacturer's new motor vehicle warranty are new motor vehicles and, therefore, covered by the provisions of the Act.



JENSEN v BMW (New Car Warranty) 35 CA4 112 [See: CivC 1790 etseq; White v County 31 C3 676]



------------

--------------------

*(T/AT III,12 - 8/95)

--------------------

------------



0930 A security guard employed by a business to protect customers is in a special relationship with customers and owes them a duty to protect them against attacks by third persons; a business who hires a security guard to protect customers owes customers a duty to hire a competent security guard.



TRUJILLO v G.A. ENTERPRISES (Fast Food Attack) 36 CA4 1105 [See: Ann M v Pacific Plaza 6 Cal.4th 666, T/AT 2/94; Pamela W v Millsom 25 CA4 950, T/AT 7/94; Nola M v USC 16 CA4 421, T/AT 8/93; Marois v Royal 162 CA3 193]



------------



0931 When the government is using defendant's product to deal with a public emergency, so long as defendant has given appropriate warnings to the government regarding the use of the product, defendant has no duty to give warnings to the general public.



MACIAS v STATE (Malathion Blindness) 10 C4 844 [See: Macias v State T/AT 4/94; GovC 8550 etseq; Martin v MuniCt 148 CA3 693; Farmers v State 175 CA3 494; Talevich v Voss 734 FS 425]



------------



0932 REVIEW DENIED A claim for personal injuries sustained by a crew member when a pleasure sailing boat was pulling away from a dock in navigable waters should be decided under the maritime law of the United States and is not subject to the doctrine of primary assumption of the risk.



BARBER v MARINA (Maritime A/R) 36 CA4 558 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92; Stimson v Carlson 11 CA4 1201, T/AT 2/93; Socony-Vacuum v Smith 305 US 424; Sisson v Ruby 497 US 358]



------------



0933 REVIEW GRANTED Damages for emotional distress resulting from interference with a financial interest should not be recoverable unless the distress is severe.



TORRES v AUTOMOBILE CLUB (Anger Not Distress) 36 CA4 972 [See: Neal v Farmers 21 C3 910; Pacific Mutual v Haslip 499 US 1; Royal Globe v SuperCt 23 C3 880; Moradi-Shalal v Fireman's Fund 46 C3 287; Merenda v SuperCt 3 CA4 1; Commercial Cotton v UCB 163 CA3 511; Twaite v Allstate 216 CA3 239; Crisci v Security 66 C2 425; Gruenberg v Aetna 9 C3 566; Jarchow v Transamerica 48 CA3 917]



------------



0934 DEPUBLISHED Damages for emotional distress resulting from medical malpractice that reduced plaintiff's chances of survival are recoverable even though plaintiff's initial chance of survival was less than 50%.



WERNER v BLANKFORT (Untreated Melanoma) 36 CA4 298 [See: Dumas v Cooney 235 CA3 1593; Duarte v Zachariah 22 CA4 1652, T/AT 4/94]



------------



0935 A plaintiff who claims that an attorney's negligence led to a settlement less favorable than it should have been must show with particularity that without the malpractice the case would have been settled on more favorable terms.



THOMPSON v HALVONIK (Disappointing Settlement) 36 CA4 657 [See: Budd v Nixen 6 C3 195; In re Easterbrook 200 CA3 1541; Williams v Wraxall 33 CA4 120, T/AT 4/95]



------------



0936 DEPUBLISHED An attorney who was paid by an insurance carrier to act as Cumis counsel to an insured was in a position antagonistic to the carrier and therefore may not have been acting under a conflict of interest when representing a different client in a bad faith action against the same carrier.



GIANNINI v LEE (Cumis Conflict) 36 CA4 600 [See: CA R of ProfCond 3-310; Santa Clara v Woodside 7 C4 525; Flatt v SuperCt 9 C4 275, T/AT 2/95; SDFCU v Cumis 162 CA3 358]



------------



0937 In deciding whether to approve the compromise of a minor's claim, a Superior Court's order that an attorney who previously represented the plaintiff was not entitled to a fee was in excess of the court's jurisdiction, but the attorney's appropriate remedy was to appeal the court's order, and having failed to do so, the attorney is prevented by the doctrines of res judicata and collateral estoppel from asserting a claim for the fee in a subsequent proceeding.



BELL v SHINE (Attorney's Lien) 36 CA4 1011 [See: Hansen v Jacobsen 186 CA3 350; Valenta v Regents 231 CA3 1465; Goldberg v SuperCt 23 CA4 1378, T/AT 5/94; Pacific v McConnell 44 C2 715]



------------



0938 REVIEW DENIED When an attorney's transactional malpractice consists of negligently giving advice, and the advice involves the client in litigation, actual injury occurs, and the statute of limitations begins to run, upon entry of a final adverse judgment, dismissal, or settlement.



KARNO v BIDDLE (Mobile Home Advice) 36 CA4 622 [See: ITT v Niles 9 C4 245, T/AT 2/95; Henry v Monaghan 34 CA4 993, T/AT 6/95]



------------



0939 When an attorney's transactional malpractice consists of negligently giving advice, and the advice involves the client in litigation, actual injury occurs, and the statute of limitations begins to run, upon entry of a final adverse judgment, dismissal, or settlement.



BALTINS v JAMES (Community Property Advice) 36 CA4 1193 [See: CCP 340.6; Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; International v Feddersen 9 C4 606, T/AT 4/95]



------------



0940 DEPUBLISHED A partner is considered to have actual knowledge of acts of other partners in furtherance of the partnership; a lawsuit against a partnership that described partnership property in a way that would have given notice to the reasonable person that the property was worthless gave partners constructive notice that the property was worthless.



DANNING v ARTHUR ANDERSEN (Slum Finance) 36 CA4 1110 [See: CCP 339; CAMSI IV v Hunter 230 CA3 1525]



------------



0941 The appropriate statute of limitations on actions against real estate licensees for breaching statutory duties established by the CivC is found in CivC 2079, which limits the period for filing such actions to two years.



LOKEN v CENTURY 21 (Real Estate S/L) 36 CA4 263 [See: Wilson v Century 21 15 CA4 298, T/AT 7/93; Easton v Strassburger 152 CA3 90; CivC 1102, 2079; CCP 338]



------------



0942 A person who has a non delegable duty and who hires an independent contractor to fulfill it may be vicariously liable to employees of the contractor for negligence by the contractor.



FELMLEE v FALCON (Non Delegable Duty) 36 CA4 1032 [See: Snyder v SoCal Edison 44 C2 793; Srithong v Total 23 CA4 721, T/AT 4/94; Gamboa v Conti 19 CA4 663, T/AT 12/93; Fremont v Hartnett 19 CA4 663, T/AT 12/93; Woolen v Aerojet 57 C2 407; Privette v SuperCt 5 C4 689, T/AT 9/93]



------------



0943 REVIEW DENIED Termination of employment because of pregnancy is discrimination on the basis of sex and gives rise to a tort action for wrongful termination in violation of public policy, even if the employer is not under the jurisdiction of the DFEH.



BADIH v MYERS (Pregnancy Discrimination) 36 CA4 1289 [See: LabC 2922; GovC 12900; CA Const I,8; Jennings v Marralle 8 C4 121, T/AT 9/94; Foley v Interactive 47 C3 654; Rojo v Kliger 52 C3 65; Gantt v Sentry 1 C4 1083]



------------



0944 Although a private social club might not be a business establishment and therefore not subject to the anti-discrimination provisions of the Unruh Civil Rights Act, a club that derives a significant amount of revenue and indirect financial benefit from the use of its facilities and the purchase of goods and services on its premises by persons who are not members of the club is a business establishment subject to the Act and is prohibited from denying membership benefits to women.



WARFIELD v PENINSULA (Men Only) 10 C4 594 [See: CivC 51; Warfield v Peninsula 214 CA3 646; Rotary v Board 178 CA3 1035; Burks v Poppy 57 C2 463; O'Connor v Village Green 33 C3 790; Isbister v Boys' Club 40 C3 72; Warfield v Peninsula T/AT 3/93]



------------



0945 DEPUBLISHED An insurance carrier is not liable for refusing to settle within the policy limits unless a judgment results in excess of the policy limits, and, if the carrier defended its insured, a judgment by stipulation in which the carrier did not participate does not satisfy this requirement.



MESSERSMITH v MID-CENTURY (Stipulated Judgment) 36 CA4 404 [See: Comunale v Traders 50 C2 654; Finkelstein v 20th Cent 11 CA4 926, T/AT 2/93]



------------



0946 An insurance carrier that wrongfully refuses to defend its insured may be required to pay a judgment to which the insured stipulated without the carrier's participation.



PRUYN v AGRICULTURAL INS (Stipulated Judgment) 36 CA4 500 [See: InsC 11580; Hogan v Midland 3 C3 553; Amato v Mercury 18 CA4 1784, T/AT 12/93; Clemmer v Hartford 22 C3 865; Smith v State Farm 5 CA4 1104]



------------



0947 After suing a third party claimant for a declaratory judgment regarding coverage, an insurance carrier cannot successfully argue that the claimant lacks standing to litigate coverage issues.



CANADIAN INS v RUSTY'S (Dragged Standing) 36 CA4 491 [See: InsC 11580(b)(2); Clemmer v Hartford 22 C3 865; America v Whitmore 235 CA2 670; State Farm v Crane 217 CA3 1127]



------------



0948 If injury to a claimant continues or progresses during the periods of several liability policies, coverage is triggered under every policy in effect during those periods; liability coverage is not precluded by the loss-in-progress rule unless at the time the policy is issued the insured knows for certain that during the policy period claim will be made and knows its extent.



MONTROSE v ADMIRAL (Continuing Injury) 10 C4 645 [See: InsC 22, 250; Sabella v Wisler 59 C2 21; 42 USC 9601 etseq; Prudential-LMI v SuperCt 51 C3 674]



------------



0949 REVIEW DENIED Although legal insanity may prevent an insured's act from being "willful" for purposes of coverage under InsC 533, irresistible impulse is not part of CA's definition of insanity.



JACOBS v FIRE INS EXCH (Irresistible Impulse) 36 CA4 1258 [See: InsC 533; JC Penney v MK 52 C3 1009; Marceau v Travellers' 101 C 338; Clemmer v Hartford 22 C3 865; M'Naghten's Case 8 EngRep 718; People v Hoin 62 C 120; PenC 25(b), 28]



------------



0950 A trial court may order joinder of a personal injury action with a related uninsured motorist arbitration proceeding, where such joinder is necessary to prevent inconsistent rulings.



PRUDENTIAL v SUPERIOR COURT (UM Joinder) 36 CA4 275 [See: CCP 1281.2(c); InsC 11580.2(f)]



------------



0951 Inconsistent testimony given by an expert at an arbitration proceeding cannot be used to impeach the expert at trial de novo.



JIMENA v ALESSO (Never Happened) 36 CA4 1028 [See: CA RofC 1616(c); EvC 770, 780(h), 785, 786, 1235; Moore v Conliffe 7 C4 634, T/AT 6/94]



------------



0952 If a party demands trial de novo after judicial arbitration, the five-year period during which an action must be brought to trial is tolled between the date the arbitration award is filed with the court and the date set for the new trial, but only if plaintiff timely notifies the trial court of the date the statute is due to expire and requests that the trial be scheduled before that date.



HOWARD v THRIFTY (De Novo Dismissal) 10 C4 424 [See: CCP 1141.10 etseq, 583.310; Moran v SuperCt 35 C3 229]



------------



0953 The anti-SLAPP statute, found at CCP 425.16, applies to causes of action that arose before it went into effect.



ROBERTSON v RODRIGUEZ (Retroactive SLAPP) 36 CA4 347 [See: CCP 425.16; Wilcox v SuperCt 27 CA4 809, T/AT 9/94; Dixon v SuperCt 30 CA4 733, T/AT 1/95; Tapia v SuperCt 53 C3 282; ARA v SuperCt 18 CA4 1556, T/AT 11/93]



------------



0954 A party who has peremptorily challenged a trial judge cannot exercise a second peremptory challenge after the case is remanded following appeal, unless the case comes before the same judge who was peremptorily challenged previously.



MATTHEWS v SUPERIOR COURT (Single Challenge) 36 CA4 592 [See: CCP 170.6; Overton v SuperCt 22 CA4 112; Hendershot v SuperCt 20 CA4 860, T/AT 2/94; Stegs v SuperCt 233 CA3 572]



------------



0955 If a litigant fails to respond to requests for admissions by the statutory deadline, the party requesting the admissions may move for an order deeming admitted the matters covered by the requests, and if the responses are not served prior to the hearing on the motion, the court must grant the motion; however, if the time for the hearing is shortened, the motion cannot be granted.



DEMYER v COSTA MESA (Shortened Hearing) 36 CA4 393 [See: CCP 2033; St. Paul v SuperCt 2 CA4 843; Tobin v Oris 3 CA4 814]



------------



0956 A trial court did not abuse its discretion when it dismissed P's complaint after plaintiff requested a six month delay before taking a defendant's default, failed to appear at a case management conference scheduled by the court, and failed to appear at a hearing regarding dismissal after being served with an order to show cause issued on the court's own motion.



CALIFORNIA CAS v SUPERIOR CT (Default Delay) 36 CA4 678 [See: GovC 68600 etseq]

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--------------------

*(T/AT IV,1 - 9/95)

--------------------

------------



0957 REVIEW GRANTED The operators of a noisy garbage truck owed a horseback rider using a nearby bridle trail a duty of reasonable care to avoid frightening the horse with noise from the truck, and the doctrine of primary assumption of the risk did not apply.



PARSONS v CROWN (Noisy Garbage Truck) 37 CA4 1251 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Tan v Goddard 13 CA4 1528, T/AT 5/93; Galardi v Seahorse 16 CA4 817, T/AT 8/93; Harrold v Rolling J 19 CA4 578, T/AT 12/93; O'Donoghue v Bear Mountain 30 CA4 188, T/AT 12/94; Eddy v Stowe 43 CA 789]



------------



0958 REVIEW DENIED Operators of a bicycle motocross course owe riders a duty of reasonable care to avoid creating excessively dangerous jumps and are not protected by the doctrine of primary assumption of the risk.



BRANCO v KEARNY MOTO PARK (BMX) 37 CA4 184 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Harrold v Rolling J 19 CA4 578, T/AT 12/93; Galardi v Seahorse 16 CA4 817, T/AT 8/93; Handelman v Mammoth, T/AT 7/93]



------------



0959 DEPUBLISHED A thirteen year old waterskier and the adult operator of the boat that was towing her were co-participants and did not owe each other a duty of reasonable care, so primary assumption of the risk applies to a negligence claim by the skier against the operator of the boat.



WICKER v OOSTEN (Waterskiing Accident) 37 CA4 331 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92; Wattenbarger v Cincinnati Reds 28 CA4 746, T/AT 11/94; Neary v Regents 3 C4 273, T/AT 10/92]



------------



0960 REVIEW DENIED A school district owed students a duty of reasonable care to warn a supervising teacher about disciplinary records of other students in their midst, but if the teacher already knew about the problems, the district's failure to warn was not a cause of an attack on a student by another student with a disciplinary record.



SKINNER v VACAVILLE USD (Disciplinary Record) 37 CA4 31 [See: Tarasoff v Regents 17 C3 425; Johnson v State 69 C2 782]



------------



0961 If, in response to demand, a party submits an expert witness declaration that is incomplete in describing the testimony the expert is expected to give, preclusion of the expert's testimony is not an appropriate sanction.



CASTANEDA v BORNSTEIN (Incomplete Declaration) 36 CA4 1818 [See: CCP 2034; Lawless v Calaway 24 C2 81; Martinez v City 12 CA4 425]



------------



0962 REVIEW DENIED An attorney's negligent preparation of the client's employment contract resulted in actual harm, and the statute began running on the client's malpractice action, when the client's claim against his employer for breach of the employment contract resulted in an arbitration award unfavorable to the client.



MARSHALL v GIBSON (Agreement in Principle) 37 CA4 1397 [See: CCP 340.6 ; Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; International v Feddersen 9 C4 606, T/AT 4/95; Pleasant v Celli 18 CA4 841, T/AT 11/93; Finlayson v Sanbrook 10 CA4 1436, T/AT 1/93]



------------



0963 REVIEW DENIED Attorney malpractice consisting of charging unconscionably excessive fees resulted in actual harm, and the statute of limitations began running on the client's malpractice action, when the document the attorney had been retained to prepare led to a judgment unfavorable to the client.



LEVIN v GRAHAM (Unsuccessful Initiative) 37 CA4 798 [See: CCP 340.6; Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; Stoll v SuperCt 9 CA4 1362, T/AT 11/92; Schultz v Harney 27 CA4 1611, T/AT 10/94]



------------



0964 REVIEW DENIED The installation of asbestos products in realty results in actual damage to the realty, and the statute of limitations begins running on a claim for damage to the realty, when the realty becomes contaminated with friable particles of asbestos.



SFUSD v GRACE (Friable Asbestos) 37 CA4 1318 [See: CCP 338; City v US Gypsum 30 CA4 575, T/AT 1/95; Jolly v Eli Lilly 44 C3 1103]



------------



0965 A civil action exists for damage resulting from violation of Penal Code sections prohibiting sexual conduct with children; triable issues of fact exist about whether the sexual conduct of a 48 year old physician with a minor was sufficiently outrageous to result in liability for intentional infliction of emotional distress and sufficiently despicable to result in liability for punitive damages.



ANGIE M v SUPERIOR COURT (Child Seduction) 37 CA4 1217 [See: PenC 261.5, 288; CivC 1708.5, 3294; Nally v Grace 47 C3 278; Kiseskey v Carpenters 144 CA3 222]



------------



0966 REVIEW DENIED A real estate broker's duty to disclose facts about the realty to a buyer does not include a duty to investigate and report on the legal ramifications of those facts or to form and report on conclusions as to how they may adversely impact value.



SWEAT v HOLLISTER (Flood Plain) 37 CA4 603 [See: Easton v Strassburger 152 CA3 90; CivC 1102 etseq; Continental v McDonnell 216 CA3 388]



------------



0967 REVIEW DENIED A voluntary dismissal because plaintiff's counsel realized that the action was premature is not a termination on the merits and does not justify a subsequent malicious prosecution action.



EELLS v ROSENBLUM (Escalation) 36 CA4 1848 [See: Sheldon Appel v Albert 47 C3 863; Crowley v Katleman 8 C4 666, T/AT 12/94; Lackner v LaCroix 25 C3 747; Feld v Western 2 CA4 1328; Bellows v Aliquot 25 CA4 426, T/AT 7/94; CCP 340]



------------



0968 REVIEW DENIED A person against whom a lawsuit was brought for inducing others to litigate has standing to make a special motion under the anti-SLAPP statute to strike the complaint; for communications made in the course of litigation, the litigation privilege provides absolute immunity from liability on any theory but malicious prosecution; settlement of litigation is not a favorable termination on the merits.



LUDWIG v SUPERIOR COURT (Mall Wars) 37 CA4 8 [See: CCP 425.16; Wilcox v SuperCt 27 CA4 809, T/AT 9/94; CivC 47; Rubin v Green 4 C4 1187, T/AT 5/93; Silberg v Anderson 50 C3 205; Heller v Norcal 8 C4 30, T/AT 8/94]



------------



0969 REVIEW DENIED Media defendants may be protected by the anti-SLAPP statute; a statement that is essentially true, cannot be the basis of a defamation action; a term that has no factual meaning (e.g., "reclusive guru") cannot be false and, therefore, cannot be the basis of a defamation action.



LAFAYETTE MOREHOUSE v CHRONICLE PUBL (Media SLAPP) 37 CA4 855 [See: CCP 425.16; Wilcox v SuperCt 27 CA4 809, T/AT 9/94; Dixon v SuperCt 30 CA4 733, T/AT 1/95; Robertson v Rodriguez 36 CA4 347, T/AT 8/95]



------------



0970 Even though a claimant complied with all statutory provisions relating to a petition for judicial relief from time limits for filing a claim against a public entity, the failure to serve notice and bring the matter to a hearing within a reasonable time violated the spirit of the statute and justified denial of the petition; excessive delay results in a presumption of prejudice, further justifying denial of the petition.



SANG HAN v CITY OF POMONA (Spirit of the Law) 37 CA4 552 [See: GovC 911. 945, 946.6; Viles v State 66 C2 24]



------------



0971 For purposes of California Tort Claims Act immunity provisions, a person becomes a prisoner when s/he is confined in a jail pursuant to lawful penal processes.



REED v COUNTY (Holding Cell Assault) 37 CA4 1274 [See: GovC 844.6; Zeilman v County 168 CA3 1174; Terzian v County 24 CA4 78, T/AT 5/94]



------------



0972 Termination of a school district superintendent involves an exercise of discretion by district school board members, so they are immune from personal liability even if the termination was for reasons prohibited by FEHA.



CALDWELL v MONTOYA (Discretionary Immunity) 10 C4 972 [See: GovC 12900 etseq, 810 etseq; Lipman v Brisbane 55 C2 224; Hardy v Vial 48 C2 577; Johnson v State 69 C2 782]



------------



0973 REVIEW DENIED A plaintiff must exhaust all administrative remedies created by FEHA before suing for wrongful termination on the ground of retaliatory discharge.



OKOLI v LOCKHEED (Retaliation Amendment) 36 CA4 1607 [See: GovC 12900 etseq; Martin v Lockheed 29 CA4 1718]



------------



0974 REVIEW DENIED In determining whether a person was hired as an employee or independent contractor, courts should examine a variety of factors and consider them in combination.



FIREMAN'S FUND v DAVIS (Sales Manager) 37 CA4 1432 [See: SG Borello v Dept of Industrial Relations 48 C3 341; Automatic Canteen v State Board 238 CA2 372 ]



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0975 REVIEW DENIED A general liability policy's personal injury coverage did not include trespass, waste, or interference with personal rights allegedly caused when gasoline leaked from the insured's underground tank and migrated into neighboring properties.



UNION OIL v INTERNATIONAL INS (Migrating Gasoline) 37 CA4 930 [See: Bank of the West v SuperCt 2 C4 1254, T/AT 9/92; Shell v Winterthur 12 CA4 715, T/AT 3/93; Titan v Aetna 22 CA4 457]



------------



0976 An insurer that issued a policy covering liability for damages resulting from personal injury or property damage does not have a duty to defend the insured against an action to quiet title, for declaratory relief, or for an injunction against the insured's further use of an easement.



GUNDERSON v FIRE INS EXCH (Quiet Title) 37 CA4 1106 [See: Montrose v SuperCt 6 C4 287, T/AT 1/94; Gray v Zurich 65 C2 263; Hurley v State Farm 10 CA4 533]



------------



0977 REVIEW DENIED The fact that an action against an excess coverage policy insured might result in a judgment in excess of the primary coverage does not obligate the excess carrier to defend, because its obligation to defend does not begin until primary coverage is exhausted.



CITY v TWIN CITY (Excess Defense) 37 CA4 1072 [See: Gray v Zurich 65 C2d 263; Montrose v SuperCt 6 C4 287, T/AT 1/94]



------------



0978 REVIEW DENIED Under a liability policy, the duty to defend is triggered if the policy in question was in effect when the damage occurred or continued.



INA v NATIONAL AMERICAN (Different Phase) 37 CA4 195 [See: Montrose v Admiral 10 C4 645, T/AT 8/95; Maryland Cas v Reeder 221 CA3 961; Remmer v Glens Falls 140 CA2 84]



------------



0979 REVIEW DENIED If a carrier is defending its insured under a reservation of rights and simultaneously litigating coverage in a separate proceeding, the trial court should stay the coverage proceeding if the carrier's position in the coverage proceeding is likely to affect the insured's position in the underlying action.



DAVID KLEIS v SUPERIOR COURT (Coverage Stay) 37 CA4 1035 [See: Gray v Zurich 65 C2 263; Montrose v SuperCt 6 C4 287, T/AT 1/94; La Jolla v Industrial 9 C4 27, T/AT 1/95; Horace Mann v Barbara B 4 C4 1076, T/AT 5/93]



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0980 REVIEW GRANTED A person claiming that his employer's participation in the Kaiser health plan was induced by fraud relating to arbitration provisions in the plan failed to establish reliance on those provisions; a claim of fraud in the way a particular contractual arbitration was handled is a breach of contract claim and, as such, is arbitrable and should be decided by the arbitrator.



ENGALLA v PERMANENTE (Kaiser Arbitration) 37 CA4 497 [See: Madden v Kaiser 17 C3 699 ; Moses H. Cone Hosp v Mercury 460 US 1; Ericksen v 100 Oak St 35 C3 312]



------------



0981 REVIEW DENIED Unless there is an allegation that the agreement to arbitrate was specifically induced by fraud and that the party resisting arbitration did not know that it was agreeing to arbitrate, issues of fraud in the inducement of a contract containing an arbitration provision should be referred to the arbitrator without preliminary judicial consideration.



HAYES v NCR (Fraud in Inducement) 37 CA4 775 [See: Prima Paint v Flood & Conklin 388 US 395; Moseley v Electronic 374 US 167; Lynch v Cruttenden 18 CA4 802, T/AT 11/93]



------------



0982 REVIEW DENIED Following judicial arbitration, if a party withdraws its request for trial de novo or requests voluntary dismissal, judgment should be entered on the arbitration award.



CALDERON v KANE (Voluntary Dismissal) 36 CA4 1663 [See: CCP 1141.20; Hawkins v Milheiser 140 CA3 334, Acuna v Gunderson 19 CA4 1467; Harris v Billings 16 CA4 1396; Marracino v Brandstetter 14 CA4 543, T/AT 5/93]



------------



0983 A case cannot be dismissed for failure to prosecute less than two years after the complaint was filed; so long as the litigant's attorney is present and ready for trial, the absence of the litigant does not justify dismissal, particularly when the litigant is en route from overseas and will be present when needed as a witness.



COHEN v HUGHES (Plaintiff Enroute) 36 CA4 1693 [See: CCP 583.420, 581; GM v SuperCt 65 C2 88; Wilson v Sunshine 34 C3 554]



------------



0984 REVIEW DENIED After a default judgment is vacated as the result of an appeal, plaintiff does not receive the benefit of CCP 583.320, which gives plaintiff 3 years to bring a case to trial following an order granting a new trial.



MISIC v SEGARS (New Trial) 37 CA4 1149 [See: CCP 583.310, 583.320; Briley v Sukoff 98 CA3 405; Tiholiz v SuperCt 104 CA3 201]



------------



0985 REVIEW DENIED A litigant who inexcusably allowed a default to be taken against him and then retained an attorney whose neglect results in a default judgment is not entitled to relief under CCP 473, which requires a court to vacate a default resulting from an attorney's neglect.



CISNEROS v VUEVE (Inexcusable Default) 37 CA4 906 [See: CCP 473; Rutan v Summit 173 CA3 965]



------------



0986 A trial court did not err in entering a default judgment against defendants served by publication, without notice to the defendants' carrier, which had previously refused to accept service for defendants and expressed uncertainty about whether it would defend them in the event service was effected.



TAYLOR v VARGA (Publication Default) 37 CA4 750 [See: CCP 473, 585, 585.5; Candelaria v Avitia 219 CA3 1436]



------------



0987 REVIEW DENIED A trial court lacks the authority to make payment of the adverse party's attorney fees a condition for granting a trial continuance.



LEVINE v POLLACK (Continuance Fees) 37 CA4 129 [See: CCP 1024; DeCesare v Lembert 144 CA3 20; Bauguess v Paine 22 C3 626]



------------



0988 REVIEW DENIED When an action involves only one tortfeasor or obligor, there is no reason for a good faith settlement hearing, and if such a proceeding is held, its result is not binding on a liability carrier that refused to defend the tortfeasor.



HARTFORD v SUPERIOR COURT (No Contest) 37 CA4 1174 [See: CCP 877.6; Peter Culley v SuperCt 10 CA4 1484; Diamond Heights v National 227 CA3 563]



------------



0989 A non settling cross defendant who has no action against settling parties and against whom the plaintiff has not asserted a claim can not possibly be prejudiced by the determination made at a good faith settlement hearing and, therefore, has no right to challenge it.



GOUVIS v SUPERIOR COURT (No Effect) 37 CA4 642 [See: CCP 877.6; Alcal v SuperCt 8 CA4 1121, T/AT 10/92; Erreca's v SuperCt 19 CA4 1475, T/AT 1/94; Regan Roofing v SuperCt 21 CA4 1685, T/AT 3/94]



------------



0990 REVIEW DENIED Class-action plaintiffs who impliedly concede that their vehicles have remained fit for driving and who claim no personal injury or property damage resulting from an alleged defect in the vehicle design can not state a cause of action against the vehicle manufacturer for breach of implied warranty.



AMERICAN SUZUKI v SUPERIOR COURT (No Class) 37 CA4 1291 [See: CCP 382; Occidental v SuperCt 18 C3 355; Collins v Safeway 187 CA3 62]



------------



0991 REVIEW GRANTED Defendants who operated Jack-in-the-Box restaurants in Washington did not have sufficient connection with the state of California to justify acquisition of personal jurisdiction over them by the California courts.



VONS v SEABEST (E Coli) 37 CA4 1090 [See: CCP 410.10; Cornelison v Chaney 16 C3 143; Oregon v SuperCt 24 CA4 1550, T/AT 6/94; Helicopteros v Hall 466 US 408]



------------



0992 When the defendant in an action for fraud was a director or owner of a bankrupt company and liable to that company for the very conduct that makes him/her liable to the plaintiff, the common cause of action may be pursued only by the trustee in bankruptcy, but if the bankrupt company does not have such a cause of action, an ordinary plaintiff has standing to sue.



PRACTICE v CLARK (Culpable Associate) 37 CA4 1003 [See: Fortier v Dona Anna 747 F2 1324; In re Curry 57 BR 824; Cumberland v Thropp 791 F2 1037]

------------



0993 If a non-attorney represented the party against whom judgment was entered, and if the party acted with due diligence upon learning that the person representing her/him was not an attorney, the judgment should be set aside.



RUSSELL v DOPP (Non-Attorney) 36 CA4 765 [See: Aldrich v San Fernando 170 CA3 725; Alexander v Robertson 882 F2 421; Gerhard v Stephens 68 C2 864]



------------



0994 REVIEW DENIED Summary judgment for defendant in a personal injury action based on a prior determination under the CCP 1953.10 that a release had been signed by the plaintiff did not deprive the plaintiff of a jury trial.



DADDARIO v SNOW VALLEY (Reconstructed Release) 36 CA4 1325 [See: EvC 1500 etseq; CCP 1953.10 etseq]



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--------------------

*(T/AT IV,2 - 10/95)

--------------------

------------



0995 REVIEW DENIED Even though it could easily have done so, the manufacturer of a skylight had no duty to make it strong enough to support the weight of a falling person; inability to support the weight of a falling person did not make a skylight defective.



ROMITO v RED PLASTIC (Collapsing Skylight) 38 CA4 59 [See: Rowland v Christian 69 C2 108; CivC 1714; Ann M v Pacific Plaza 6 C4 666, T/AT 2/94; Sturgeon v Curnutt 29 CA4 301, T/AT 11/94]



------------



0996 REVIEW DENIED The Health & Safety Code does not impose on a county the mandatory duty to prevent the release of hazardous materials; unless they acted in bad faith or were guilty of gross negligence, county officials are immune from liability in connection with perils resulting from the discharge of hazardous substances.



WASHINGTON v COUNTY (Toxic Cloud) 38 CA4 890 [See: H&SC Ch 6.95; GovC 815.6; Brenneman v State 208 CA3 812; Braman v State 28 CA4 344, T/AT 10/94]



------------



0997 An attorney representing a general partner with respect to partnership business may owe a duty of reasonable care to limited partners.



JOHNSON v SUPERIOR COURT (Implied Client) 38 CA4 463 [See: Goodman v Kennedy 18 C3 335; Morales v Field 99 CA3 307; Wortham v SuperCt 188 CA3 927; Responsible Citizens v SuperCt 16 CA4 1717]



------------



0998 DEPUBLISHED Arbitration of a fee dispute between attorney and client does not necessarily terminate the attorney-client relationship to prevent tolling of the statute of limitations on a client's claim against the attorney.



JACOBY v SCHENKEL (Excessive Fees) 36 CA4 1701 [See: Section 340.6; Stoll v SuperCt 9 CA4 1362, T/AT 11/92]



------------



0999 REVIEW DENIED Unless they are members of the same firm, attorneys may not split fees without disclosing their arrangement to the client and obtaining the client's written consent; a fee splitting agreement made contrary to this rule is unenforceable.



SCOLINOS v KOLTS (Fee Splitting) 37 CA4 635 [See: Kallen v Delug 157 CA3 940; R of Prof Cond 2-108]



------------



1000 Landlords (and hotel keepers) are not strictly liable for injuries sustained by tenants (or hotel guests) as a result of defects in the leased premises; Becker v IRM is overruled.



PETERSON v SUPERIOR COURT (Slippery Tub) 10 C4 1185 [See: Greenman v Yuba 59 C2 57; Becker v IRM 38 C3 454; Pierson v Sharp 216 CA3 340; Muro v SuperCt 184 CA3 1089; Hahn v SuperCt 1 CA4 1448; Peterson v SuperCt T/AT 11/93; Green v SuperCt 10 C3 616]



------------



1001 DEPUBLISHED The federal Food Drug and Cosmetic Act pre-empts state causes of action against certain suppliers based on theories of negligence, negligence per se, defective design, failure to perform safely, failure to warn, improper manufacture, failure to recall, distribution of adulterated devices, and breach of implied warranty of fitness, but not does not pre-empt actions based on theories of fraud or fraudulent concealment.



POWERS v OPTICAL RADIATION (Intraocular Lens) 37 CA4 1444 [See: 21 USC 360 etseq; Erie v Tompkins 304 US 64; Cipollone v Liggett 112 SCt 2608; Evraets v Intermedics 29 CA4 779, T/AT 11/94]



------------



1002 REVIEW DENIED The federal Food Drug and Cosmetic Act pre-empts state causes of action against certain suppliers based on theories of negligence, negligence per se, defective design, distribution of adulterated devices, and breach of implied warranty of fitness.



SCOTT v CIBA VISION (Lens Solution) 38 CA4 307 [See: 21 USC 360 etseq; Erie v Tompkins 304 US 64; Cipollone v Liggett 112 SCt 2608; Evraets v Intermedics 29 CA4 779, T/AT 11/94; Powers v Optical Radiation 37 CA4 1444, T/AT 10/95]



------------



1003 Denying in bad faith that a contract exists is not a tort; Seaman's v Standard Oil is overruled.



FREEMAN & MILLS v BELCHER OIL (Denial of Contract) 11 C4 85 [See: Seaman's v Standard Oil 36 C3 752; Foley v Interactive 47 C3 654; Freeman v Belcher T/AT 10/94]



------------



1004 REVIEW DENIED A party to a contract cannot be liable in tort for interfering with the contract or for conspiring with another to interfere with the contract.



KASPARIAN v COUNTY (County Conspiracy) 38 CA4 242 [See: Tuttle v Buck 119 NW 946; Buckaloo v Johnson 14 C3 815; Wise v Southern Pacific 223 CA2 50; Applied Equipment v Litton 7 C4 503, T/AT 5/94]



------------



1005 REVIEW DENIED Damages for emotional distress are not usually available in an action for interference with economic advantage.



DI LORETO v SHUMAKE (Fee Distress) 38 CA4 35 [See: REST (2nd) of Torts 774A; BAJI 7.89; Youst v Longo 43 C3 64; PG&E v Bear Stearns 50 C3 1118]



------------



1006 VACATED An action for violating Business & Professions Code sections that prohibit secret rebates to the injury of a competitor can be maintained by competitors of those giving the rebates, but not by competitors of those receiving the rebates.



ABC v MATSUSHITA (Secret Rebates) 38 CA4 398 [See: B&PC 17000, 17045; E&H Wholesale v Glaser 158 CA3 728; Harris v Capitol 64 C2 454]



------------



1007 Criminal conviction for violating Penal Code 593d, which creates criminal and civil liability for installing an unauthorized cable TV descrambler, is not a prerequisite to civil action.



CABLEVISION v PUSATERI (Cable Descrambler) 38 CA4 517 [See: PenC 593d; Morse v MuniCt 13 C3 149]



------------



1008 The Lemon Law provisions of the Song Beverly Consumer Warranty Act do not require the lessee of an automobile to revoke acceptance within a reasonable time of discovering defects in the automobile.



KROTIN v PORSCHE (Lemon Flavored Porsche) 38 CA4 294 [See: CivC 1790-1795.8; CommC 2602; Krieger v Nick Alexander 234 CA3 205; Soule v GM 8 C4 548, T/AT 11/94]



------------



1009 An action under the Bane Act can be maintained only by a person who has been the target of violence or intimidation based on ethnic or other improper animus <i.e., "hate crime">, and not by a person suing for the wrongful death of another.



BART v SUPERIOR COURT (BART Shooting) 38 CA4 141 [See: CivC 52.1; 51.7; In re Joshua H 13 CA4 1734; Boccato v City 29 CA4 1797]



------------



1010 Without going through the procedures required by PenC 832.7 and EvC 1043, a police department may give its attorney access to the personnel file of a former officer for the purpose of finding information with which to impeach the former officer's credibility as a witness against the department.



MICHAEL v GATES (Personnel Records) 38 CA4 737 [See: PenC 832.7; EvC 1043; Hackett v SuperCt 13 CA4 96, T/AT 4/93; City v MuniCt 49 C3 74; Davis v City 24 CA4 393]



------------



1011 An attorney defending a government entity against a personal injury action may not tell the jury that a verdict against the government entity will result in the disappearance of public services.



DU JARDIN v CITY (Disappearing Services) 38 CA4 174 [See: Sabella v Southern 70 C2 311; People v Graziadio 231 CA2 525; People v Loop 127 CA2 786; Hoffman v Brandt 65 C2 549]



------------



1012 REVIEW DENIED Statutory immunity for public employees against liability for instituting or prosecuting a judicial or administrative proceeding applies to criminal investigations and protects police officers against negligence or conversion liability for damage that occurs during the execution of a search warrant.



BAUGHMAN v STATE (Deleted Floppies) 38 CA4 182 [See: 42 USC 1983; Will v Michigan 491 US 58; Hill v NCAA 7 C4 1; GovC 821.6, 815.2; Amylou R v County 28 CA4 1205, T/AT 11/94]



------------



1013 REVIEW DENIED A person required or authorized to report suspected child abuse under PenC 11160 etseq is immune from liability for doing so, regardless of whether there are reasonable grounds to suspect that abuse has occurred.



STECKS v YOUNG (Schizophrenic Informant) 38 CA4 365 [See: PenC 11160 etseq; James W v SuperCt 17 CA4 246, T/AT 9/93; Ferraro v Chadwick 221 CA3 86]



------------



1014 REVIEW DENIED The state's statutory immunity from liability for injury caused by a legislatively approved plan of a construction of public property does not apply to injury caused by the work of construction or the plan for such work; when an immunity statute is not clear, the injured party should get the benefit of the doubt.



WINIG v STATE (Construction Plan) 37 CA4 1772 [See: GovC 830.6; Baldwin v State 6 C3 424; Lopez v SCRTD 40 C3 780]



------------



1015 REVIEW GRANTED In an insurer's action for a declaratory judgment as to coverage and for reimbursement of Cumis counsel fees, the insured can maintain a cross claim for bad faith; the litigation privilege of CivC 47 does not apply to an insurer's course of conduct, which included a suit against the insured for a declaratory judgment as to coverage and for reimbursement of Cumis Counsel fees.



WEST AMERICAN INS v FREEMAN (Bad Faith Cross Complaint) 37 CA4 1469 [See: Babb v SuperCt 3 C3 841; CivC 47; PG&E v Bear Stearns 50 C3d 1118; CCP 426.30]



------------



1016 A policy insuring against liability for bodily injury or tangible property damage resulting from an occurrence did not require the insurer to indemnify or defend against a claim for interference with economic advantage, even though the claimant was seeking damages for emotional distress.



WALLER v TRUCK (Emotional Business) 11 C4 1 [See: Gray v Zurich 65 C2 263; Chatton v NU 10 CA4 846, T/AT 1/93; McLaughlin v NU 23 CA4 1132, T/AT 3/94; Waller v Truck T/AT 9/94]



------------



1017 In an insurance bad faith action based on an insurer's refusal to pay costs of defense, a claim for emotional distress damages can not stand alone and must fail unless the insured can show economic damages.



CONTINENTAL v SUPERIOR COURT (Bad Faith Damages) 37 CA4 69 [See: Nabisco v Transport 143 CA3 831; Gruenberg v Aetna 9 C3 566; Torres v Automobile Club 36 CA4 972, T/AT 8/95]



------------



1018 The acceptance of an offer of compromise under CCP 998 is not required to be formally served, and any means of communication, including fax transmission, is sufficient.



HOFER v YOUNG (Faxed Acceptance) 38 CA4 52 [See: Moffett v Barclay 32 CA4 980, T/AT 3/95; CCP 998; CivC 1582, 1583]



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1019 After determining that the only evidence in support of plaintiff's sexual harassment claim was plaintiff's hypnotically induced recollection, the trial court was correct in excluding plaintiff's testimony and ordering a nonsuit.



SCHALL v LOCKHEED (Hypnotic Recollection) 37 CA4 1485 [See: EvC 795; People v Shirley 31 C3 18]



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1020 REVIEW DENIED A defendant moving for summary judgment can satisfy the burden of negating an element of plaintiff's case by pointing to the absence of evidence to establish that element, thus shifting to plaintiff the burden of showing that there is a triable issue of fact as to that element.



HUNTER v PACIFIC MECH (Shifting Burdens) 37 CA4 1282 [See: CCP 437c; FRCP 56; Celotex v Catrett 477 US 317; Union v SuperCt 31 CA4 573, T/AT 2/95; Villa v McFerren 35 CA4 733, T/AT 7/95; Smith v ACandS 31 CA4 77, T/AT 2/95]



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1021 A court must order arbitration of a dispute upon petition by any party to a written arbitration agreement unless it determines that grounds exist for the revocation of the agreement, and it cannot make that determination in an evidentiary vacuum; so, if the party opposing arbitration presents no evidence indicating that grounds exist for revocation of the agreement, it must be enforced.



OWENS v INTERTEC (Evidentiary Vacuum) 38 CA4 72 [See: CCP 1281.2; Strauch v Eyring 30 CA4 181; Bolanos v Khalatian 231 CA3 1586]



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1022 Arbitration pursuant to statute is "judicial arbitration" and, unless trial de novo is requested, may result in a judgment including costs, but arbitration pursuant to agreement is "true arbitration" in which no costs may be awarded except as specified in the agreement.



PARKER v BABCOCK (True Arbitration) 37 CA4 1682 [See: Joyce v Black 217 CA3 318; Woodard v Permanente 171 CA3 656; Blanton v Womancare 38 C3 396; Byerly v Sale 204 CA3 1312]



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1023 REVIEW DENIED For purposes of the vexatious litigant statute, the court can treat a voluntary dismissal without prejudice as a final termination adverse to the plaintiff.



TOKERUD v SACRAMENTO (Vexatious Dismissal) 38 CA4 775 [See: CCP 391 etseq; First Western v SuperCt 212 CA3 860; Taliaferro v Hoogs 237 CA2 73]



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1024 A secured lender's purchase of property by full credit bid at a nonjudicial foreclosure sale does not prevent that lender from maintaining a fraud action against parties who fraudulently procured the loan.



ALLIANCE v ROTHWELL (Full Credit Bid) 10 C4 1226 [See: Alliance v Rothwell T/AT 9/94; Western v Sawyer 10 CA4 1615; GN Mortgage v Fidelity 21 CA4 1802]



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--------------------

*(T/AT IV,3 - 11/95)

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1025 An event cannot independently support an action for negligent infliction of emotional distress on the bystander theory unless the plaintiff is present and contemporaneously observes the injury-producing event.



CAMPANANO v CALIFORNIA MEDICAL (Sloppy IV) 38 CA4 1322 [See: Dillon v Legg 68 C2 728; Ochoa v SuperCt 39 C3 159; Thing v LaChusa 48 C3 644]



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1026 REVIEW DENIED A ski resort has no duty to pad ski lift equipment to protect skiers who collide with it.



CONNELLY v MAMMOTH MT (Unpadded Tower) 39 CA4 8 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Branco v Kearny 37 CA4 184, T/AT 9/95]



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1027 REVIEW DENIED Whether an attorney should have asserted an affirmative defense based on the exclusivity of the workers' compensation remedy is a question of fact; if the interests of an insurer are not adverse to the interests of its insured, an attorney hired by the insurer to represent the insured owes the insurer a duty of reasonable care.



UNIGARD v O'FLAHERTY & BELGUM (Attorney's Duty) 38 CA4 1229 [See: Doney v Tambouratgis 23 C3 91; Rowland v County 220 CA3 331]



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1028 REVIEW DENIED Surplus Lines Association, a private non-profit organization that serves as a conduit for information between non-admitted insurance carriers, insurance brokers who sell policies written by non-admitted carriers, and the Department of Insurance, does not owe a duty of care to persons who purchase from insurance brokers policies issued by non-admitted carriers.



ORD v SURPLUS LINE ASSN (Non-admitted Carrier) 38 CA4 1276 [See: Glanzer v Shepard 233 NY 236; Bily v Arthur Young 3 C4 370, T/AT 11/92]



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1029 REVIEW DENIED / NAME CHANGED Attorneys do not owe a duty of reasonable care to persons hired as experts in a client's case; a settlement between plaintiff and cross-defendant is subject to the good faith settlement provisions of CCP 877.6, even though no action is pending or possible between the settling parties.



ARTHUR YOUNG & CO. v HELMER (Misdirected Expert) 38 CA4 1337 [See: Biakanja v Irving 49 C2 647; Lucas v Hamm 56 C2 583; Held v Arant 67 CA3 748; CCP 877.6]



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1030 REVIEW GRANTED The statute of limitations on an action for wrongful termination began to run when the employment was terminated, not when the employee was first notified of the possibility or probability that it would be terminated.



ROMANO v ROCKWELL (Early Retirement) 39 CA4 140 [See: Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; International v Feddersen 9 C4 606, T/AT 4/95; Regents v SuperCt 33 CA4 1710, T/AT 5/95]



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1031 The special childhood sexual abuse statute of limitations does not apply to actions for negligently failing to prevent childhood sexual abuse.



CHANEY v SUPERIOR COURT (Abuser's Wife) 39 CA4 152 [See: CCP 340.1; Reynolds v SuperCt 25 CA4 222, T/AT 6/94]



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1032 REVIEW DENIED Damages recovered by a plaintiff in an action for continuing nuisance may include compensation for damage sustained after the action was commenced.



RENZ v 33RD DIST AGRIC ASSN (Motorcycle Nuisance) 39 CA4 61 [See: Hopkins v WPRR 50 C 190; Kafka v Bozio 191 C 746; Spaulding v Cameron 38 C2 265; Baker v Burbank 39 C3 862; Capogeannis v SuperCt 12 CA4 668, T/AT 3/93]



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1033 REVIEW DENIED The Southern California Joint Powers Insurance Authority is not required to defend or indemnify an insured city against liability for damage resulting from the enactment of an anti-noise ordinance that allegedly put a claimant's factory out of business.



CITY v SO CAL JOINT POWERS INS AUTH (Anti-Noise Ordinance) 38 CA4 1629 [See: United Pacific v McGuire 229 CA3 1560; Dykstra v Foremost 14 CA4 361, T/AT 5/93; Waller v Truck 11 C4 1, T/AT 9/94 and 10/95]



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1034 REVIEW DENIED Without consent of the judgment creditor, a judgment calling for periodic payments cannot be satisfied by purchasing an annuity that will make the payments.



HRIMNAK v WATKINS (Periodic Payments) 38 CA4 964 [See: CCP 667.7; Schiernbeck v Haight 7 CA4 869; American Bank v Community Hospital 36 C3 359]



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1035 REVIEW DENIED A significant, obvious, and complete power outage that causes all traffic signals in the vicinity to fail does not amount to a dangerous condition of public property.



CHOWDHURY v CITY (Lights Out) 38 CA4 1187 [See: GovC 835, 830; Bady v Detwiler 127 CA2 321; Hoel v City 136 CA2 295; Goodman v Raposa 151 CA2 830; VehC 21800]



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1036 Post judgment interest on a judgment against a local public entity accrues at the rate of 7% as fixed by the state Constitution, rather than at 10% as provided CCP 685.010.



CALIFORNIA FED v CITY OF LA (Government Interest) 11 C4 342 [See: CCP 685.010; GovC 970.1; CA Const XV,1]



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1037 Under CCP 664.6, the trial court cannot enter judgment according to the terms of an oral stipulation of settlement unless it is made by the litigants themselves.



JOHNSON v DEPARTMENT OF CORRECTIONS (Oral Stipulation) 38 CA4 1700 [See: CCP 664.6; Levy v SuperCt 10 C4 578, T/AT 7/95]



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1038 REVIEW DENIED A law firm that employs a former judge who conducted settlement conferences on a case in which the firm represents a party should be disqualified from the case.



DONGHEE CHO v SUPERIOR COURT (Caesar's Wife) 39 CA4 113 [See: Higdon v SuperCt 227 CA3 1667; Chambers v SuperCt 121 CA3 893]



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1039 REVIEW GRANTED Communications made during mediation sessions to an ombudsperson by persons who believed their statements were confidential are protected against discovery by the qualified privilege established by the CA Constitution's right of privacy.



GARSTANG v SUPERIOR COURT (Ombudsperson) 39 CA4 526 [See: CA Const I,1; Board of Trustees v SuperCt 119 CA3 516]



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1040 An employer's knowledge that there was a hole in a pasta machine and that something was probably missing from it was not a conveyance by the manufacturer to the employer of the knowledge required under the power press exception to the exclusivity of workers' compensation remedies.



BRYER v SANTA CRUZ PASTA FACTORY (Pasta Press) 38 CA4 1711 [See: LabC 4558; Swanson v Matthews 175 CA3 901]



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1041 REVIEW DENIED A carrier's demand for arbitration of an Uninsured Motorist claim in which there is no issue reasonably to be resolved by arbitration is a tortious breach of the implied covenant of good faith and fair dealing.



HIGHTOWER v FARMERS (Bad Faith Arbitration) 38 CA4 853 [See: Foley v Interactive 47 C3 654; Richardson v Employers 25 CA3 232; InsC 11580.26]



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1042 REVIEW DENIED The Rule of Court promulgated by the Judicial Council allowing electronic recording of Superior Court proceedings as a means of keeping an official record exceeded the authority of the Judicial Council and is invalid.



CAL COURT REPORTERS v JUDICIAL COUNCIL (Electronic Record) 39 CA4 15 [See: CaRofC 33(e), 891, 892, 980.3; CCP 269; CA Const VI, 6]



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1043 On appeal of an order granting summary judgment in a discrimination case, the Court of Appeal should review the matter de novo, granting no particular deference to the trial court ruling, in order to independently determine whether the defendants were entitled to judgment as a matter of law.



ROMERO v AMERICAN PRESIDENT (Summary Judgment Standard) 38 CA4 1199 [See: Flowmaster v SuperCt 16 CA4 1019, at 9/93; Saldana v Globe-Weis 233 CA3 1505; Martin v Lockheed 29 CA4 1718, T/AT 12/94; USC v SuperCt 222 CA3 1028]



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1044 In opposing a special motion to strike under CCP 425.16 (i.e., SLAPP statute) plaintiff must make an evidentiary showing of the ability to establish a prima facie case, and this burden cannot be satisfied by statements made on information and belief.



EVANS v UNKOW (SLAPP Opposition) 38 CA4 1490 [See: CCP 425.16; Robertson v Rodriguez 36 CA4 347, T/AT 8/95; Wilcox v SuperCt 27 CA4 809, T/AT 9/94; Dixon v SuperCt 30 CA4 733, T/AT 1/95]



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1045 REVIEW DENIED Forum related acts by an alleged co-conspirator are not sufficient to confer on California courts personal jurisdiction over non-resident members of the alleged conspiracy; by entering a general appearance, a defendant waives jurisdictional objections.



MANSOUR v SUPERIOR COURT (Non Resident Conspirator) 38 CA4 1750 [See: Sanchez v SuperCt 203 CA3 1391; Creed v Schultz 148 CA3 733; CCP 1014; Helicopteros v Hall 466 US 408; Kaiser v Deal 86 CA3 896]



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1046 REVIEW GRANTED A party who successfully defends a tort action arising from a contract is the prevailing party even if the suit is dismissed voluntarily and may recover attorney fees as an element of costs if the contract so provides.



SANTISAS v GOODIN (Tort Fees) 39 CA4 128 [See: CCP 1021, 1032, 1033.5; CivC 1717; Xuereb v Marcus 3 CA4 1338; Jue v Patton 33 CA4 456, T/AT 4/95]



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1047 An attorney who chooses to litigate in pro per in an action to enforce a contract containing an attorney fee provision can not recover reasonable attorney's fees under CivC 1717.



TROPE v KATZ (Attorney in Pro Per) 11 C4 274 [See: Trope v Katz T/AT 11/94; CivC 1717; Patterson v Donner 48 C 369; City v Sten 206 C 473; Dameshghi v Texaco 3 CA4 1262; Renfrew v Loysen 175 CA3 1105]



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1048 REVIEW DENIED If a written employment contract contains an agreement that the employment is at will, the admission of oral evidence of an implied agreement not to terminate without cause depends on whether the writing was a final expression of the agreement of the parties, and, in the absence of any issue of credibility or conflict in the evidence, is a question of law for the court subject to independent determination upon review.



HAGGARD v KIMBERLY (Parol Evidence) 39 CA4 508 [See: CCP 1856; Slivinsky v Watkins 221 CA3 799; Gerdlund v Electronic 190 CA3 263]



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1049 A power press is a material-forming machine that utilizes a die and is designed for use in the manufacture of other products; since a printing press does not use a die and prints images on paper rather than forming materials used in the manufacture of other products, it is not a power press.



McCOY v ZAHNISER (Printing Press) 39 CA4 107 [See: LabC 4558; Ceja v JR Wood 196 CA3 1372]



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1050 Only a person claiming to have been a victim of discrimination has standing to sue under the federal Americans with Disabilities Act.



VENTURA v HADLEY (No Standing) 38 CA4 878 [See: CCP 367; Killian v Millard 228 CA3 1601; 42 USC 12117(a); Trafficante v Metropolitan 409 US 205]

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--------------------

*(T/AT IV,4 - 12/95)

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1051 REVIEW GRANTED A landlord who exercises actual or apparent control over a condition on realty not its own may have a duty to protect tenants against it, if it knows that tenants will be exposed to risks created by the condition and if injury to tenants is foreseeable.



ALCARAZ v VECE (Meter Box) 39 CA4 1447 [See: Rowland v Christian 69 C2 108; CivC 1714; Southland v Superior Court 203 CA3 656]



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1052 The foreseeability that gang violence will occur on streets adjacent to a landholder's premises is not sufficient to impose on the landholder a duty to protect users of those streets against acts of violence by gangs that congregate on the landholder's premises; the Street Terrorism Enforcement and Prevention Act (PenC 186.20) does not authorize a civil action for damages resulting from the congregation of gangs on private property.



MEDINA v HILLSHORE (Gang Hangout) 40 CA4 477 [See: Ann M v Pacific Plaza 6 C4 666, T/AT 2/94; Martinez v Pacific Bell 225 CA3 1557; Steinmetz v Stockton 169 CA3 1142; Rosales v Stewart 113 CA3 130]



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1053 In general, a bank's duty of reasonable care in handling the account of a depositor is owed only to the depositor; if a depositor fails to discover within one year that the bank paid forged checks from the depositor's account, the depositor is precluded from asserting the forgeries against the bank in any way, including an action for negligence; an opinion that expresses the view of less than a majority of the members of a court is not precedent.



ROY v WELLS FARGO (Forged Checks) 39 CA4 1051 [See: Lucas v Hamm 56 C2 583; Bily v Arthur Young 3 C4 370, T/AT 11/92; Kendall Yacht v United 50 CA3 949; Dodd v Citizens 222 CA3 1624; CA UCC 1103, Art 4; Sun'n Sand v United 21 C3 671]



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1054 REHEARING GRANTED One who employs an independent contractor to perform work involving a peculiar risk of harm if safety precautions are not taken may be liable to an employee of the independent contractor for its negligence in failing to require the independent contractor to take such safety precautions; such liability is not vicarious, and is therefore not prevented by Privette.



STUDER v CALAVERAS CEMENT (Rubber Shredder) 39 CA4 1247 [See: Privette v Superior Court 5 C4 689, T/AT 9/93; Whitford v Swinerton 34 CA4 1054, T/AT 6/95]



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1055 REVIEW DENIED Jurors are employees of the county and are, therefore, restricted to workers' compensation remedies against the county for injuries sustained while serving.



WAGGENER v COUNTY (Juror Compensation) 39 CA4 1078 [See: LabC 3600 etseq; Arriaga v County 9 C4 1055, T/AT 5/95]



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1056 Although there is a strong common law presumption that an employee may be demoted at will, if an employer's policy that employees will not be demoted without cause becomes an implied term of the employment contract, demotion without cause is a breach of contract.



SCOTT v PG&E (Wrongful Demotion) 11 C4 454 [See: Foley v Interactive 47 C3 654; LabC 2922]



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1057 Intentionally interfering with a non-contractual business relationship (i.e., prospective business advantage) is not a tort unless the defendant's conduct is independently wrongful by some legal measure other than the fact of interference itself.



DELLA PENNA v TOYOTA (Lexus Interference) 11 C4 376 [See: Tuttle v Buck 119 NW 946; Seaman's v Standard 36 C3 752; Freeman v Belcher 11 C4 85, T/AT 10/95; SF Design v Portman 36 CA4 892, T/AT 3/95; REST (2d) 766b]



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1058 An insurer's refusal to renew a term professional malpractice policy is not tortious, no matter what the reason.



SCHIMMEL v NORCAL MUTUAL (Tortious Non-renewal) 39 CA4 1282 [See: Greene v Safeco 140 CA3 538; Travelers v Lesher 187 CA3 169]



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1059 Violation of a discovery order in a way that induces others to bring meritorious actions against a party is not a tort; a discovery agreement merges in a judicial order entered thereon and, therefore, cannot be the basis of breach of contract liability.



WESTINGHOUSE v NEWMAN (Filed Secrets) 39 CA4 1194 [See: PG&E v Bear Stearns 50 C3 1118; Hough v Hough 26 C2 605]



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1060 REVIEW GRANTED A trial court did not abuse its discretion by issuing a protective order that permits a party discovering an adverse party's trade secret to share the information so discovered with attorneys representing other claimants in similar actions.



RAYMOND v SUPERIOR COURT (Shared Secrets) 39 CA4 584 [See: CCP 2031; Kraszewski v State Farm 139 FRD 156; Bridgestone v Superior Court 7 CA4 1384, T/AT 9/92]



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1061 New York is a more appropriate forum than California for the claims of plaintiffs who reside in New York and sustained injury as a result of their grandmothers' ingestion of DES in New York, and a trial court, therefore, did not abuse its discretion in dismissing the claims on the ground of forum non conveniens.



BOAZ v BOYLE (DES Jurisdiction) 40 CA4 700 [See: In re DES 789 FS 552; Sindell v Abbott 26 C3 588; Bichler v Eli Lilly 55 NY2 571; Enright v Eli Lilly 77 NY2 377; Turpin v Sortini 21 C3 220; Piper v Reyno 454 US 235; Gulf v Gilbert 330 US 501; Price v Atchison 42 C2 577]



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1062 REVIEW DENIED Grand jurors are not immune from defamation liability for statements about persons not indicted contained in grand jury reports on the activities of government agencies.



BROOKS v BINDERUP (Grand Jury Privilege) 39 CA4 1287 [See: PenC 930, 924.1, 924.2; McClatchy v Superior Court 44 C3 1162]



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1063 Defamation liability can not be imposed on a defendant solely because s/he made financial contributions to the organization that published a defamatory statement; information about payment or non-payment of fines by a candidate for public office is a matter of public concern rather than a private fact, and so its public disclosure can not result in liability for invasion of privacy.



MATSON v DVORAK (Financial Contributor) 40 CA4 539 [See: CCP 425.16; Wilcox v Superior Court 27 CA4 809, T/AT 9/94; Osmond v EWAP 153 CA3 842; Sakuma v Zellerbach 25 CA2 309; Diaz v Oakland Tribune 139 CA3 118; Kapellas v Kofman 1 C3 20]



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1064 REVIEW DENIED Under the SLAPP statute, the prevailing party on a SLAPP motion may recover attorney fees incurred in successfully making or opposing the motion, but not the fees incurred in handling the rest of the case.



LAFAYETTE MOREHOUSE v CHRONICLE (Media SLAPP) 39 CA4 1379 [See: CCP 425.16; Lafayette Morehouse v Chronicle 37 CA4 855, T/AT 9/95]



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1065 Since the public already has a right to peaceably protest abortion, a respondent's success in resisting a petition for an injunction against publication of a brochure concerning abortion practitioners did not confer a substantial benefit upon the general public and, therefore, did not entitle the respondent to attorney fees under the private attorney general statute.



FAMILY PLANNING v POWERS (Pro-life Warrior) 39 CA4 1561 [See: CCP 1021.5; Serrano v Priest 20 C3 25; Press v Lucky 34 C3 311; Woodland v City Council 23 C3 917]



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1066 Under B&P 6201(a), dismissal of an attorney's suit for a fee on the ground that the attorney failed to notify the client of the right to demand arbitration is discretionary rather than mandatory.



RICHARDS v KING (Arbitration Notice) 39 CA4 1176 [See: B&P 6201(a); Manatt v Lawrence 151 CA3 1165]



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1067 A question of fact exists as to when a client sustained actual injury as a result of an attorney's failure to file an action before the statute of limitations runs out.



ADAMS v PAUL (S/L on S/L) 11 C4 583 [See: Laird v Blacker 2 C4 606; Finlayson v Sanbrook 10 CA4 1436, T/AT 1/93; Pleasant v Celli 18 CA4 841, T/AT 11/93; Adams v Paul T/AT 12/94; Budd v Nixen 6 C3 195; ITT v Niles 9 C4 245, T/AT 2/95; International v Feddersen 9 C4 606, T/AT 4/95]



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1068 Attorney malpractice that leads a client into a disadvantageous stipulation of settlement first results in actual injury when the stipulation is made, rather than when judgment is subsequently entered on the stipulation.



POMPILIO v KOSMO (Settlement Malpractice) 39 CA4 1324 [See: Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; Sirott v Latts 6 CA4 923; Karno v Biddle 36 CA4 622, T/AT 8/95; Hensley v Caietti 13 CA4 1165, T/AT 5/93]



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1069 Attorney malpractice that caused the client to enter into a disadvantageous settlement resulted in actual injury when the settlement was made.



TCHORBADJIAN v WESTERN HOME (Unreported Offer) 39 CA4 1211 [See: Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95]



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1070 REVIEW DENIED An amended complaint seeking recovery for the same accident and injuries as the original complaint, but changing the situs of the accident, relates to the same general set of facts as the original complaint and is not time-barred, if the original complaint was not time-barred.



IDDING v NORTH BAY CONSTRUCTION (Different Location) 39 CA4 1111 [See: Austin v Massachusetts Bonding 56 C2 596; Grudt v City 2 C3 575; Smeltzley v Nicholson 18 C3 932]



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1071 CCP 352, which tolls the running of the statute of limitations on certain actions by a minor, does not toll the period for filing a claim for employment discrimination under FEHA.



BALLOON v SUPERIOR COURT (FEHA Minority Toll) 39 CA4 1116 [See: GovC 12960; CCP 352; Accardi v Superior Ct 17 CA4 341, T/AT 9/93; Denney v Universal 10 CA4 1226, T/AT 1/93; Artukovich v Astendorf 21 C2 329]



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1072 REVIEW DENIED The statute of limitations does not begin to run on an insured's cause of action against an insurance company to compel arbitration of uninsured motorist benefits until the insurance company refuses to arbitrate; even though the statute of limitations has not run, an insured's failure within a reasonable time after the accident to demand arbitration of an uninsured motorist claim is a waiver of the insured's right to arbitrate the claim.



ALLSTATE v GONZALEZ (UM Waiver) 38 CA4 783 [See: CCP 337, 1281.2; Spear v CSAA 2 C4 1035]



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1072A Commencement of an action for asbestos-related disease is an assertion that such an action has accrued and thus triggers running of the statute of limitations, even if there has been no disability.



DARDEN v GM (Double Dip) 40 CA4 349 [See: CCP 340.2; Blakey v Superior Court 153 CA3 101; Duty v Abex 214 CA3 745; Uram v Abex 217 CA3 1425]



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1073 REVIEW DENIED The mandatory provisions of CCP 36(b) concerning trial preference do not prevent a court from exercising its discretion to dismiss an action for failure diligently to prosecute.



LANDRY v BERRYESSA USD (Dismissal and Preference) 39 CA4 691 [See: CCP 36(b), 583.410, 583.420]



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1074 REVIEW DENIED If a plaintiff who believes her action against a defendant is meritorious voluntarily dismisses it as consideration for payment by another defendant, the dismissal is not a termination on the merits in favor of the defendant and may not give rise to a malicious prosecution action; but if the plaintiff voluntarily dismisses the action against a defendant because s/he does not believe the action had merit, the dismissal is a termination on the merits in favor of the defendant and may give rise to an action for malicious prosecution.



FUENTES v BERRY (Dismissed Cops) 38 CA4 1800 [See: Sheldon Appel v Albert 47 C3 863; Pender v Radin 23 CA4 1807, T/AT 5/94; Villa v Cole 4 CA4 1327]



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1075 Settlement of an unlawful detainer proceeding in which the tenant asserted a defense based on breach of the warranty of habitability does not prevent a subsequent damages action by the tenant against the landlord for breaching the warranty of habitability.



LANDEROS v PANKEY (Tenant's Revenge) 39 CA4 1167 [See: CSAA v Superior Court 50 C3 658; In re Buckley 133 CA3 927]



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1076 Determination of the amount of punitive damages by the jury that originally determined that punitive damages should be awarded satisfies the statutory requirement that both determinations be made by the same jury, even though alternate jurors were substituted for original jurors in the phase in which the amount was determined.



RIVERA v SASSOON (Alternate Jurors) 39 CA4 1045 [See: CivC 3294, 3295; City v Superior Court 29 CA4 272, T/AT 11/94]



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1077 REVIEW DENIED A liability policy excluding coverage for the discharge of pollutants, but providing that the exclusion does not apply if the discharge is sudden and accidental, may afford coverage against liability to a claimant whose complaint is unspecific about how, when, and over what period of time the pollutants were allegedly discharged.



VANN v TRAVELERS (Pollution Coverage) 39 CA4 1610 [See: Montrose v Superior Court 6 C4 287, T/AT 1/94; Montrose v Admiral 10 C4h 645, T/AT 8/95]



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1078 A liability carrier is not obligated to oppose affirmative defenses asserted against its insured in an action prosecuted by the insured.



3250 WILSHIRE v EMPLOYERS INS OF WAUSAU (Defense Against Defense) 39 CA4 1277 [See: American Home v Miller 717 F2 1310]



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1079 REVIEW DENIED When an insurer's decision to pursue declaratory relief regarding coverage under a policy is challenged by way of a later bad faith action, and the essential facts on which the insurer acted are not disputed, the issue of whether the insurer acted in bad faith is a question of law for the court.



DALRYMPLE v UNITED SERVICES (Bad Faith DJ) 40 CA4 497 [See: Love v Fire Ins Exch 221 CA3 1136; Neal v Farmers 21 C3 910]



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1080 REVIEW DENIED Fire insurance policy language requiring disputes to be resolved by a panel of "independent" appraisers must yield to the language of the Insurance Code, which specifies resolution by "disinterested" appraisers, and so the carrier which issued the policy may not designate an appraiser it regularly uses as an expert witness and with whom it has an ongoing pecuniary relationship.



GEBERS v STATE FARM (Disinterested Appraiser) 38 CA4 1648 [See: InsC 2071; Figi v New Hampshire Ins 108 CA3 772]



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1081 Excess insurance carriers found to be coinsurers on the same risk may be required to contribute equally to a settlement without apportioning the relative fault of each of the insureds.



FIRE INS EXCH v AMERICAN STATES (Equal Coinsurers) 39 CA4 653 [See: CSE v Northbrook 23 CA4 1839]



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1082 Good faith settlement by an excess liability carrier with its insured does not bar a contribution claim by a second excess liability carrier.



TOPA v FIREMAN'S (Excess Settlement) 39 CA4 1331 [See: CCP 877, 877.6; American Motorcycle v Superior Court 20 C3 578]



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1083 In deciding whether a party received a judgment more favorable than an offer of compromise made under CCP 998, the amount of the judgment should be considered before deducting the workers' compensation lien; a non-settling party against whom judgment is rendered is entitled to a setoff for sums paid by settling parties, even though the jury determined that the settling parties were without fault.



POIRE v PECK/JONES (Pre-lien) 39 CA4 1832 [See: CCP 877, 998; Tech-Bilt v Woodward-Clyde 38 C3 488; Manthey v San Luis Rey Downs 16 CA4 782]



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1084 A guardian ad litem may repudiate a tentative compromise of a minor's claim before trial court approval, and, the guardian having done so, the trial court may not unilaterally enforce the compromise unless it finds that the guardian acted contrary to the minor's best interests.



SCRUTON v KOREAN AL (Repudiated Settlement) 39 CA4 1596 [See: CCP 37; Dacanay v Mendoza 573 F2 1075]



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1085 Under California's "Lemon Law," civil penalties are available without proof that defendant's failure to comply with the statute was wilful; the Lemon Law is constitutional.



SUMAN v SUPERIOR COURT (Lemon Law) 39 CA4 1309 [See: CivC 1790 etseq; Suman v BMW 23 CA4 1, T/AT 4/94]



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1086 REVIEW DENIED Regardless of whether an organization such as MADD is a "business establishment," expulsion of a member for disruptive behavior does not violate the Unruh Act.



HARRIS v MADD (Disruptive Behavior) 40 CA4 16 [See: CivC 51; Isbister v Boys' Club 40 C3 72; Warfield v Peninsula 10 C4 594, T/AT 8/95]



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--------------------

*(T/AT IV,5 - 1/96)

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1087 REVIEW GRANTED A restaurant owes a customer taken hostage by a robber a duty to avoid unreasonably increasing the risk of injury, and there is a triable issue of fact as to whether failing to accede to the robber's demand was a breach of that duty.



KENTUCKY FRIED CHICKEN v SUPERIOR COURT (Robber's Demand) 40 CA4 798 [See: Rowland v Christian 69 C2 108; Ann M v Pacific Plaza 6 C4 666, T/AT 2/94; Vandermost v Alpha Beta 164 CA3 771]



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1088 REVIEW DENIED To recover damages for fear of AIDS, plaintiff must either show that the fear is parasitic to physical harm consisting of detrimental physical change in the body or that plaintiff is more likely than not to contract AIDS.



MACY'S v SUPERIOR COURT (Fear of AIDS) 41 CA4 744 [See: Molien v Kaiser 27 C3 916; Herbert v Regents 26 CA4 782, T/AT 8/94; Kerins v Hartley 27 CA4 1062, T/AT 9/94; Duarte v Zachariah 22 CA4 1652, T/AT 4/94]



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1089 Neither a defendant nor its insurance carrier has a duty to include all the heirs in the settlement of a wrongful death action.



SMITH v PREMIER ALLIANCE (Non-settling Heirs) 41 CA4 691 [See: CCP 377.60; Johnson v Pratt 28 CA4 613, T/AT 10/94; Mayerhoff v Kaiser 71 CA3 803]



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1090 The lessor of a banquet hall, by cooperating in the tenant's acquisition of one-day liquor license, did not cause the sale of alcohol to an obviously intoxicated minor by the tenant.



HERNANDEZ v MODESTO PORTUGUESE (Causes to be Sold) 40 CA4 1274 [See: B&P 25602.1; Vesely v Sager 5 C3 153; Schaffield v Abboud 15 CA4 1133, T/AT 7/93]



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1091 REVIEW GRANTED Misrepresentations contained in letters of recommendation written by defendants, which helped a former employee whom they knew to have a history of sexually abusing children obtain employment as a middle school vice principal, might breach a duty owed to a child subsequently molested by him while the child was a student at the middle school where he was employed.



RANDI W v LIVINGSTON USD (Recommended Molester) 41 CA4 400 [See: Bily v Arthur Young 3 C4 370, T/AT 11/92; Garcia v Superior Court 50 C3 728; Palsgraf v LIRR 248 NY 339; REST(2d) 310, 311; PenC 11164]



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1092 REVIEW DENIED An action for childhood sexual abuse may be brought within three years after plaintiff actually or constructively discovers that psychological harm experienced after achieving majority was caused by childhood sexual abuse, even though plaintiff was aware of the abuse when it occurred and never repressed its memory.



LENT v DOE (Mechanisms of Denial) 40 CA4 1177 [See: CCP 340.1; Chaney v Superior Court 39 CA4 152, T/AT 11/95; Reynolds v Superior Court 25 CA4 222, T/AT 6/94]



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1093 REVIEW DENIED The special relationship between tenants in a housing project and the housing authority that operates it could result in a duty on the housing authority to act reasonably to protect tenants from risks resulting from use of the project by criminals who regularly assault tenants; such use by criminals is a dangerous condition for which liability may be imposed on a public entity; a plaintiff who witnessed a fire in which members of his family were killed may recover for resulting emotional distress even though he did not see the family members being burned; a public entity's callous and systematic disregard for the safety of persons who rely on it for protection might be actionable under the federal Civil Rights Act as an invasion of a liberty interest; a government tort claim arises when the damage occurs and may include acts, whenever committed, that led to damage within the statutorily specified period (i.e., six months) prior to filing.



ZUNIGA v HOUSING AUTHORITY (Firebomb) 41 CA4 82 [See: GovC 835, 830(a), 820.2, 845, 911.2, 895.2; O'Hara v Western 75 CA3 798; MacDonald v State 230 CA3 319; Davidson v City 32 C3 197; Jackson v Clements 146 CA3 983; Johnson v State 69 C2 782; Gates v Superior Court 32 CA4 481, T/AT 3/95; Loehr v Ventura 147 CA3 1071; Thing v LaChusa 48 C3 644; 42 USC 1983; Wood v Ostrander 879 F2 583; Parratt v Taylor 451 US 527]



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1094 REVIEW DENIED A lender's purchase at foreclosure of the collateral by a full credit bid establishes that the value of the collateral is equivalent to the debt it secured and prevents the lender from recovering damages allegedly resulting from a negligent appraisal.



PACIFIC INLAND BANK v AINSWORTH (Full Credit Bid) 41 CA4 277 [See: GN Mortgage v Fidelity 21 CA4 1802; Western v Sawyer 10 CA4 1615; Alliance v Rothwell 10 C4 1226, T/AT 10/95; Romo v Stewart Title 35 CA4 1609]



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1095 Defendant's negligent driving that caused repeated collisions with plaintiff's car, frightening plaintiff into driving away, was not a proximate cause of emotional distress plaintiff subsequently suffered when prosecuted for feloniously leaving the scene of an accident.



BREWER v EST OF TEANO (Intervening Prosecution) 40 CA4 1024 [See: REST(2d) Torts 441, 440, 442; Pool v City 42 C3 1051]



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1096 In general, except when the employee is an on-duty police officer and the victim a member of the general public, an employer is not vicariously liable for an employee's acts of sexual misconduct, even when the employee's tort is committed at the place of employment and while the employee is attending to employment duties. (Dissenting and Concurring Opinions)



FARMERS INSURANCE v COUNTY (Jail Guards) 11 C4 992 [See: GovC 825-825.6, 995-996.6; Perez v Van Groningen 41 C3 962; Mary M v City 54 C3 202; Alma W v Oakland USD 123 CA3 133]



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1097 A hospital is not vicariously liable for sexual abuse committed upon a patient by an employee while performing employment duties.



LISA M v HENRY MAYO (Ultrasonic Abuse) 12 C4 291 [See: Mary M v City 54 C3 202; John R v Oakland USD 48 C3 438; Morin v Henry Mayo T/AT 11/94]



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1098 REVIEW GRANTED One who employs an independent contractor to perform work involving a peculiar risk of harm if safety precautions are not taken is not liable to an employee of the independent contractor for failing to require the independent contractor to take such safety precautions; such liability is vicarious, and is therefore prevented by Privette.



TOLAND v SUNLAND (Peculiar Risk) 40 CA4 1057 [See: Woolen v Aerojet 57 C2 407; Privette v Superior Court 5 C4 689, T/AT 9/93; Owens v Giannetta 23 CA4 1662, T/AT 5/94; Studer v Calaveras 39 CA4 1247, T/AT 12/95]



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1099 REVIEW DENIED An employer's agreement to indemnify a third person against subsequent liability to an employee is not enforceable unless it is signed by all parties to it, including the party seeking indemnity.



HANSEN v SUPERIOR COURT (Unilateral Indemnity) 40 CA4 722 [See: LabC 3864; Nielsen v International 18 CA4 863, T/AT 11/93]



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1100 DEPUBLISHED Terminating an employee for refusing to consent to the recording of telephone conversations violates a statutory right of privacy and may result in tort liability for wrongful termination in violation of public policy.



NAGY v WHITTLESEY (Recorded Conversations) 40 CA4 1238 [See: Semore v Pool 217 CA3 1087; Luck v Southern Pacific 218 CA3 1, PenC 631 etseq]



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1101 REVIEW DENIED In a tort action for employment discrimination, the burden of going forward with the evidence shifts, but the burden of persuasion does not.



CALDWELL v PARAMOUNT USD (Shifting Burdens) 41 CA4 189 [See: GovC 12940; 42 USC 2000 etseq; 29 USC 621 etseq; McDonnell Douglas v Green 411 US 792; Mixon v FEHC 192 CA3 1306]



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1102 An employer had good cause to terminate managerial and supervisorial level employees who, while they had access to confidential company information, performed extensive acts toward the objective of establishing a competing business, with the intention of relying upon contacts made through their employment.



STOKES v DOLE (Nut Case) 41 CA 4 285 [See: LabC 2922; Pugh v See's 116 CA3 311; Bancroft-Whitney v Glen 64 C2 327; Fowler v Varian 196 CA3 34]]



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1103 REVIEW DENIED Assertions capable of objective truth or falsity are not opinions protected against defamation liability by the First Amendment even though they include subjective adjectives; defamatory statements made with knowledge of their falsity are made with actual malice, which justifies an award of punitive damages.



SOMMER v GABOR (Battle of the Stars) 40 CA4 1455 [See: Reich v Purcell 67 C2 551; Fortman v Hemco 211 CA3 241; Gertz v Robert Welch 418 US 223; Puchan v Godeau 167 C 692; CivC 3283; CCP 3294]



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1104 Liability for spoliation of evidence cannot be based on a destruction of documents that occurred 25 years before the cause of action arose in which the documents would have been evidence, even if the documents were destroyed to prevent their use in future litigation.



WILLARD v CATERPILLAR (Destroyed Documents) 40 CA4 892 [See: Smith v Superior Court 151 CA3 491; Velasco v Commercial 169 CA3 874; Foster v Lawrence 809 FS 831]



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1105 REVIEW DENIED Under a General Comprehensive Liability policy, an insurer is not obligated to defend or indemnify against claims for emotional distress resulting from negligently caused financial losses.



TICOR v EMPLOYERS (Technical Equities) 40 CA4 1699 [See: McLaughlin v National 23 CA4 1132, T/AT 3/94; Chatton v National 10 CA4 846, T/AT 1/93]



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1106 REVIEW DENIED Under a policy insuring against liability for "wrongful entry or eviction, or other invasion of the right of private occupancy," an insurer may have an obligation to defend its insured against claims by government entities for ground cleanup costs under the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), the Resource, Conservation and Recovery Act ("RCRA"), and other, similar statutes.



MARTIN MARIETTA v INA (Other Invasion) 40 CA4 1113 [See: Montrose Chemical v Superior Court 6 C4 287, T/AT 1/94; Gray v Zurich 65 C2 263; Nichols v Great American 169 CA3 766; Waranch v Gulf 218 CA3 356; Fibreboard v Hartford 16 CA4 492, T/AT 8/93]



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1107 InsC 11580.2, which provides that a claim under the uninsured motorist coverage in a claimant's policy is barred unless the claimant sues the uninsured motorist within one year, does not apply to underinsured motorist claims.



QUINTANO v MERCURY (Underinsured S/L) 11 C4 1049 [See: InsC 11580.2; Arrasmith v State Farm 24 CA4 12, T/AT 5/94; Quintano v Mercury T/AT 8/94]



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1108 REVIEW DENIED The lender, rather than the insurance carrier, must bear the financial loss resulting from an insurance agent's fraudulent submission of a premium financing application on behalf of insureds who did not authorize the application.



CALIFORNIA INDEMNITY v FIREMAN'S FUND (Fraudulent Financing) 40 CA4 1633 [See: InsC 673; Pacific v Wolff 72 CA3 537]



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1109 REVIEW DENIED Actions against an investment dealer for fraudulently creating the impression that it was an agency of a bank and against the bank for fraudulently permitting the investment dealer to create that impression are not pre-empted by the federal Home Owner's Loan Act (HOLA).



FENNING v GLENFED (Non Bank) 40 CA4 1285 [See: 12 USC 1461 etseq; USConst VI,2; Fidelity Federal v de la Cuesta 458 US 141; THM v Commissioner 176 MichApp 772; Spitz v Goldome 210 IllApp3 215; Siegel v American Savings 210 CA3 953]



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1110 REVIEW DENIED An insured suing an insurer for its bad faith refusal to pay the insured's claim may be entitled to recover attorney fees incurred in attempting to collect, but is not entitled to fees incurred in opposing the insurer's appeal from a judgment in the bad faith action.



BURNABY v STANDARD FIRE (Appeal Fees) 40 CA4 787 [See: CCP 1021; Brandt v Superior Court 37 C3 813]



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1111 REVIEW DENIED For the purpose of calculating maximum attorney fees allowed by MICRA in a case resulting in a judgment for periodic payments, the "total value" of the judgment is the present value of the product of the periodic payments multiplied by the number of years remaining in the plaintiff's life expectancy, or if the periodic payments are to be made through an annuity purchased by the defendant, the cost of the annuity.



NGUYEN v UCLA (Periodic Fees) 40 CA4 1433 [See: CivC 3333.2; CCP 667.7; B&P 6146]



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1112 The common fund doctrine should not be applied to permit a plaintiff who recovers against a third party to deduct from a hospital's lien on the recovery a proportionate share of his/her attorney fees.



CITY v SWEET (Common Fund) 12 C4 105 [See: Lindsey v County 109 CA3 933; City v Sweet T/AT 4/95]



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1113 REHEARING GRANTED If a party to a discovery dispute claims to be indigent, before sending the dispute to a referee and apportioning the referee's fee, the court should consider various factors, including whether the party's costs are being advanced by the attorney, and the possibility that the dispute can be resolved by extra attention from the court.



DEBLASE v SUPERIOR COURT (Referee Fee) 40 CA4 1188 [See: Solorzano v Superior Court 18 CA4 603, T/AT 11/93; McDonald v Superior Court 22 CA4 364, T/AT 3/94]



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1114 Although responses to discovery demands must be verified, objections do not have to be verified, so a response containing statements and objections does not result in waiver of the objections, even if it is not verified.



FOOD 4 LESS v SUPERIOR COURT (Unverified Objections) 40 CA4 651 [See: CCP 2031; Blue Ridge v Superior Court 202 CA3 339]



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1115 If a summons is served within 3 years after the action was filed, and defendant makes a general appearance within 3 years and 60 days after the action was filed, the court may not dismiss for failure to make timely service, even though proof of service was not filed within 3 years and 60 days after the action was filed.



BISS v BOHR (General Appearance) 40 CA4 1246 [See: CCP 583.250, 583.110, 583.220; Wong v Armstrong 232 CA3d 1032]



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1116 REVIEW DENIED The provisions of CCP 473 mandating that a judgment be vacated if it resulted from attorney neglect apply whether the default is taken by the clerk or by a judge; if evidence concerning the blame for suffering a default gives rise to conflicting inferences, one of which supports the trial court's conclusion, that conclusion should not be disturbed on appeal.



LORENZ v COMMERCIAL (Judge's Default) 40 CA4 981 [See: CCP 473; Metropolitan v Casa 31 CA4 1481; Cisneros v Vueve 37 CA4 906, T/AT 9/95]



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1117 REVIEW DENIED An award of sanctions for bringing a frivolous action does not deprive the sanctioned party of its right to a jury trial, even though it would have such a right if sued for maliciously prosecuting the frivolous action.



ANDRUS v ESTRADA (Malicious Prosecution Overlap) 39 CA4 1030 [See: CCP 128.5; Annino v McArthur 215 CA3 353; Lesser v Huntington 173 CA3 922; Pyne v Meese 172 CA3 392; Lavine v Hospital 169 CA3 1019; Eastin v Bank 66 C 123; People v One 1941 Chevrolet 37 C2 283]



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1118 It is an abuse of discretion for a trial court to issue a terminating sanction for failure to pay a monetary sanction.



NEWLAND v SUPERIOR COURT (Non-payment of Sanctions) 40 CA4 608 [See: CCP 2023; Caryl Richards v Superior Court 188 CA2 300; Midwife v Bernal 203 CA3 57]



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*(T/AT - 2/96)

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1119 REVIEW DENIED The operator of a licensed residential facility for the elderly had a statutory duty to take certain measures for the protection of residents; the special relationship between the facility and its residents imposed on the facility a duty to act reasonably to prevent residents from committing suicide.



KLEIN v BIA HOTEL (Hotel Suicide) 41 CA4 1133 [See: EvC 669; Rowland v Christian 69 C2 108; Nally v Grace 47 C3 278; Meier v Ross 69 C2 420; Vistica v Presbyterian 67 C2 465]



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1120 REVIEW DENIED An instructor of the sport of rock climbing did not have a duty to protect a student against inherent risks of the activity, and there was a primary assumption of the risk, so long as the student was not taken beyond the level of his rock climbing experience and capability.



REGENTS v SUPERIOR COURT (Rock Climbing) 41 CA4 1040 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92; Stimson v Carlson 11 CA4 1201, T/AT 2/93; Tan v Goddard 13 CA4 1528, T/AT 5/93; Galardi v Seahorse 16 CA4 817, T/AT 8/93; Wattenbarger v Cincinnati Reds 28 CA4 746, T/AT 11/94; Morgan v Fuji 32 CA4 127, T/AT 5/95]



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1121 A common interest development homeowner's association did not have a duty to disclose construction defects and pending litigation against the developer to a person who was purchasing a home from one of the association's members.



KOVICH v PASEO DEL MAR (Association's Silence) 41 CA4 863 [See: Karoutas v HomeFed 232 CA3 767; Rowland v Christian 69 C2 108; Maillard v Dowdell 528 So2 512]



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1122 REVIEW DENIED An action to enforce a declaration of covenants, conditions and restrictions, even though termed an action for continuing nuisance, is subject to the statute of limitations applicable to actions on covenants running with the land, which does not begin to run until a demand is made for performance under the covenant.



CUTUJIAN v BENEDICT HILLS (CCR Nuisance) 41 CA4 1379 [See: Scherpenseel v Bitney 865 P2 1145; Strosnider v Pomin 52 CA2 745]



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1123 REVIEW DENIED A judgment for damages for pain and suffering of a decedent can not be awarded if the decedent died after submission of the case to a jury but prior to the entry of judgment.



KELLOGG v ASBESTOS CORP (Posthumous Judgment) 41 CA4 1397 [See: CCP 669, 377.34; Building v Farrell 41 C3 651; Unzueta v Ocean 6 CA4 1689; Williamson v Plant 23 CA4 1406]



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1124 A person who has been induced by a fraudulent promise of permanent employment to leave a job, relocate, and enter into an employment contract can maintain a fraud action for damages resulting from the loss of the former job and expenses associated with relocation, but the remedy for damages resulting from termination of the new employment is breach of contract.



LAZAR v SUPERIOR COURT (Cross Country Fraud) 12 C4 631 [See: Foley v Interactive 47 C3 654; Hunter v Up-Right 6 C4 1174, T/AT 2/94; Lazar v Rykoff T/AT 1/95]



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1125 Giving special benefits to an employee with whom an employer is romantically involved does not violate the rights of other employees to be free from sexual discrimination and sexual harassment.



PROKSEL v GATTIS (Promoted Paramour) 41 CA4 1626 [See: GovC 12900 etseq; Foley v Interactive 47 C3 654; Rojo v Kliger 52 C3 65]



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1126 REVIEW DENIED An insured suing an insurer for first party bad faith may not recover damages for emotional distress without establishing actual economic injury.



WATERS v USAA (Emotional Insured) 41 CA4 1063 [See: Gourley v State Farm 53 C3 121; Gruenberg v Aetna 9 C3 566; Samson v Transamerica 30 C3 220; Continental v Superior Court 37 CA4 69, T/AT 10/95]



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1127 Under a homeowner's policy insuring against liability for personal injury or property damage resulting from an accident, the insurer was not obligated to defend its insured against an action for negligently or intentionally misrepresenting the condition of the plumbing when selling the home.



MILLER v WESTERN GENERAL (Accidental Misrepresentation) 41 CA4 1144 [See: Chatton v National Union 10 CA4 846, T/AT 1/93; Dykstra v Foremost 14 CA4 361, T/AT 5/93]



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1128 A liability policy issued to a highway carrier in compliance with the Highway Safety Act remains in effect, and the insurer remains liable, until 30 days after notice of cancellation is sent to the PUC.



TRANSAMERICA v TAB TRANSPORTATION (Endless Policy) 12 C4 389 [See: PUC 3501 etseq; Fireman's Fund v Allstate 234 CA3 1154]



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1129 Under a policy that insured a state fair authority against liability for injuries connected with the operation of an exhibitor's booth, there was no coverage for an injury sustained by the exhibitor's grandchild who fell from a grandstand while visiting the exhibitor.



HARTFORD v STATE (State Fair Coverage) 41 CA4 1564 [See: Montrose v Superior Ct 6 C4 287, T/AT 1/94; Waller v Truck 11 C4 1, T/AT 10/95; La Jolla v Industrial 9 C4 27, T/AT 1/95]



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1130 REVIEW DENIED Recovery under underinsured motorist coverage in the policy of a person injured while riding as a passenger in the vehicle of an underinsured motorist should be reduced by any amounts the injured person received from the underinsured driver's carrier in settlement of a personal injury action and from the manufacturer of the vehicle in settlement of a product liability action.



MERCURY INSURANCE v VANWANSEELE-WALKER (Underinsured Coverage Limit) 41 CA4 1093 [See: InsC 11580.2(p)(4); Rudd v California Casualty 219 CA3 948; Viking v State Farm 17 CA4 540, T/AT 10/93]



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1131 Monetary sanctions for bringing a frivolous action awarded in favor of an attorney who appeared in pro per, may include the reasonable value of services performed by the attorney-litigant in his/her own behalf.



ABANDONATO v COLDREN (Sanction Fees) 41 CA4 264 [See: CivC 1717; CCP 128.5; Andrus v Estrada 39 CA4 1030, T/AT 1/96; Trope v Katz 11 C4 274, T/AT 11/95]



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1132 A moving company that employs independent contractors and provides them with trailers that they pull with their own tractors is not in the business of renting or leasing motor vehicles without operators, and so the policy issued to it is not presumed to be excess under InsC 11580.9.



TRAVELERS v MARYLAND CASUALTY (Moving Company) 41 CA4 1538 [See: InsC 11580.9; Mission v Hartford 160 CA3 97; Transport v Royal 189 CA3 250]



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1133 REVIEW DENIED Depositions in actions against a public entity are public records available to subsequent litigants under the Public Records Act.



CITY OF LA v SUPERIOR COURT (Public Records) 41 CA4 1083 [See: GovC 6250 etseq; Seattle Times v Rhinehart 467 US 20]



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1134 REVIEW DENIED / NAME CHANGED California courts are not required to enforce an injunction, issued by another state court as part of the settlement of a wrongful termination action, prohibiting an auto safety expert from testifying in litigation against his former employer.



STEPHENS v SUPERIOR COURT (Deposition Injunction) 41 CA4 1014 [See: USConst IV, 1; Pacific v Comm'n 306 US 493; Brinker v Superior Court 235 CA3 1296]



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1135 A mail order sale that takes place in another state is not subject to the provisions of California's Song-Beverly Consumer Warranty Act.



CALIFORNIA STATE ELECTRONICS v ZEOS (Out-of-state Sale) 41 CA4 1270 [See: CivC 1790 etseq; USConst I,8,3]



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*(T/AT 3/96)

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1136 The firefighter's rule does not justify the conclusion that operators of a building in which there was a dangerous condition did not owe a duty to a guard employed by a private security company to patrol the building.



MARQUEZ v MAINFRAME (Wet Floor) 42 CA4 881 [See: Donohue v SFHA 16 CA4 658, T/AT 8/93; Knight v Jewett 3 C4 296, T/AT 10/92; Neighbarger v Irwin 8 C4 532, T/AT 11/94]



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1137 As a matter of law, a handrail installed in a way that invited persons to descend the staircase at an oblique angle did not constitute a dangerous condition of public property.



DAVIS v CITY OF PASADENA (Oblique Handrail) 42 CA4 701 [See: GovC 830.2; Peterson v SFCCD 36 C3 799]



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1138 A public prosecutor is absolutely immune from liability for acts committed within the scope of official duties and, therefore, cannot be liable for failing to warn a witness about threats of violence made by a suspect identified by the witness.



FALLS v SUPERIOR COURT (Drive-by Witness) 42 CA4 1031 [See: Imbler v Pachtman 424 US 409]



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1139 REVIEW DENIED Under W&IC sections authorizing the detention of mentally disordered persons who are a danger to themselves or others, hospital employees are immune from liability for temporarily restraining such persons while waiting for designated authorities to evaluate their condition, from liability for administering medication without the consent of persons so detained, and from liability for medical malpractice connected with the detention.



HEATER v SOUTHWOOD (Seventy-two Hour Hold) 42 CA4 1068 [See: W&IC 5150 etseq; Riese v St Mary's 209 CA3 1303]



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1140 REVIEW DENIED Provisions of California's survival statute that prohibit recovery for pain and suffering experienced by a decedent before death are not inconsistent with the federal Civil Rights Act.



GARCIA v SUPERIOR COURT (Surviving Civil Rights) 42 CA4 177 [See: Burnett v Grattan 468 US 42; Guyton v Phillips 532 FS 1154; Bell v City 746 F2 1205]



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1141 REVIEW GRANTED Upstream owners whose property was flooded as the result of a flood control project designed to protect downstream owners and whose property would not otherwise have been damaged are entitled to just compensation on an inverse condemnation theory without establishing fault by the government entity responsible for the project.



AKINS v STATE (Hydraulic Dam) 42 CA4 941 [See: Albers v County 62 C2 250; Customer v City 10 C4 368, T/AT 7/95; Locklin v City 7 C4 327, T/AT 4/94; Belair v Riverside 47 C3 550]



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1142 REVIEW DENIED The relationship between doctor and patient is not an open book account if the doctor's bill is paid in full and the patient does not intend to return to the doctor, so an arbitration agreement signed by the patient before the first visit is no longer in effect if the patient subsequently consults with the doctor again.



COCHRAN v RUBENS (Open Book) 42 CA4 481 [See: CCP 1295(c); Gross v Recabaren 206 CA3 771]



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1143 An action against a hospital by a patient who was sexually abused by hospital employees is a claim arising from professional negligence and may not include a demand for punitive damages unless there has been compliance with CCP 425.13, which requires that plaintiff show a reasonable probability of success.



UNITED v SUPERIOR COURT (Hospital Assault) 42 CA4 500 [See: CCP 425.13; Central Pathology v Superior Court 3 C4 181, T/AT 10/92]



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1144 REVIEW DENIED An action to set aside a judgment entered in prior litigation is an action arising from the judgment creditor's right of petition and may be subject to a special motion to strike under the anti-SLAPP statute; the anti-SLAPP statute applies to actions arising from defendant's right of petition regardless of whether public issues are involved; a defendant may be awarded attorney fees incurred in successfully opposing the appeal of an order striking a pleading under the anti-SLAPP statute.



CHURCH OF SCIENTOLOGY v WOLLERSHEIM (Scientology SLAPP) 42 CA4 628 [See: CCP 425.16; Wilcox v Superior Ct 27 CA4 809, T/AT 9/94; Wollersheim v Church 212 CA3 872; Religious Technology v Wollersheim 971 F2 364; Church v Wollersheim 499 US 914; Wollersheim v Church 15 CA4 1426]



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1145 Actions arising from statements by defendant on public issues are subject to a special motion to strike under the anti-SLAPP statute, even though the statements were not made publicly.



AVERILL v SUPERIOR COURT (Women's Shelter) 42 CA4 1170 [See: CCP 425.16; Dixon v Superior Court 30 CA4 733, T/AT 1/95; Wilcox v Superior Court 27 CA4 809, T/AT 9/94]



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1146 A stipulated judgment that results from negotiation and is part of a settlement is not a termination on the merits sufficient to support a subsequent action for malicious prosecution.



DALANY v AMERICAN PACIFIC (Malicious Cross Claim) 42 CA4 822 [See: Sheldon Appel v Albert 47 C3 863; Pender v Radin 23 CA4 1807, T/AT 5/94; Fuentes v Berry 38 CA4 1800, T/AT 12/95]



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1147 REVIEW DENIED If facts exist that would have led a reasonable attorney to think that a claim was tenable, the attorney who asserted that claim on behalf of a client had probable cause to do so and is not liable for malicious prosecution, regardless of whether s/he was aware of those facts when asserting the claim.



HUFSTEDLER v SUPERIOR COURT (Objective Probable Cause) 42 CA4 55 [See: Sheldon Appel v Albert 47 C3 863; Slater v Durchfort, T/AT 7/95]



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1148 A plaintiff suing for tortious interference with prospective economic advantage must plead and prove that a specific relationship existed, which was reasonably probable to result in economic advantage if not for defendant's interference.



WESTSIDE v SAFEWAY (Vacant Anchor) 42 CA4 507 [See: Della Penna v Toyota 11 C4 376, T/AT 12/95; Dickes v Fenne 82 EngRep 411; Youst v Longo 43 C3 64; PG&E v Bear Stearns 50 C3 1118]



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1149 REVIEW DENIED Attorney fees should not be awarded under the private attorney general statute if plaintiff's expectation was a sufficient personal stake in the outcome to provide an incentive to litigate not disproportionate to the burden of private enforcement; in determining plaintiff's expectation the court may consider amounts demanded by plaintiff's attorney in settlement negotiations and in arguments to the jury.



SATRAP v PG&E (Private Attorney General) 42 CA4 72 [See: CCP 1021.5; Beasley v Wells Fargo 235 CA3 1407; Beach Colony II v CA Coastal 166 CA3 106]



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1150 REVIEW DENIED A fee splitting agreement between attorneys not members of the same firm is unenforceable unless the client knows how the fee will be split.



CAMPAGNA v CITY OF SANGER (Incomplete Disclosure) 42 CA4 533 [See: Scolinos v Kolts 37 CA4 635, T/AT 10/95; R of Prof Cond 2-108]



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1151 An attorney who represented a husband in a personal injury action and his wife in a related claim for loss of consortium no longer represented the wife after she was divorced from the husband, voluntarily dismissed her loss of consortium claim, and agreed to relinquish any and all rights she might have in her former husband's lawsuit, so direct communication with her by an adverse attorney in the action was not a breach of ethics.



JACKSON v INGERSOLL-RAND (Attorney Without Client) 42 CA4 1163 [See: CCP 128(a)(5); Comden v Superior Court 20 C3 906; CA RofPC 2-100]



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1152 Under CCP 664.6, the court can not enter judgment on a stipulation unless the stipulation was made by the litigants themselves and the court also can not enter judgment on a stipulation made before a court-referenced mediator who lacks adjudicative authority to render a binding decision.



MURPHY v PADILLA (Mediation Settlement) 42 CA4 707 [See: CCP 664.6; Levy v Superior Court 10 C4 578, T/AT 7/95; Johnson v Dept of Corrections 38 CA4 1700, T/AT 11/95]



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1153 REVIEW DENIED / APPLICATION TO SEAL GRANTED Mediation ends when a settlement is reached, so statements made about the terms of the settlement are not made during the course of mediation and are not excluded from evidence.



REGENTS v SUMNER (Admissible Agreement) 42 CA4 1209 [See: EvC 1152.5; Ryan v Garcia 27 CA4 1006, T/AT 9/94]



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1154 An insurance carrier can exercise its right to rescind at any time prior to the commencement of an action at law to enforce the policy.



RESURE v SUPERIOR COURT (Right to Rescind) 42 CA4 156 [See: InsC 650]

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1155 NAME CHANGED Under a policy excluding liability for injuries resulting from assault and battery, an insurer has no obligation to defend an action brought by the victim of an assault committed by the insured's employee, even though the action was brought on a negligent hiring and supervision theory.



CENTURY v AMERICAN EMPIRE formerly ROTHSCHILD v SILAR (Employee's Assault) 42 CA4 121 [See: Bay Cities v Lawyers' Mutual 5 C4 854, T/AT 10/93; AIU v Superior Court 51 C3 807]



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1156 An automobile registered in a sole proprietor's trade name is owned by the sole proprietor and thus subject to an "owned vehicle" exclusion in a policy covering the same sole proprietor doing business under another trade name.



PROVIDENCE v VALLEY FORGE (Assumed Name) 42 CA4 1194 [See: Duval v Midwest 425 FS 1381; Gabrelcik v National 269 Minn 445]



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1157 REVIEW DENIED Under liability policies covering injury arising from "wrongful entry or eviction, or other invasion of the right of private occupancy" and from "wrongful entry into, or eviction of a person from, a room, dwelling or premises that the person occupies," carriers had an obligation to defend against a suit for interference with economic advantage resulting from the insured's alleged ouster of claimant from business premises.



GENERAL ACCIDENT v WEST AMERICAN (Ouster Coverage) 42 CA4 95 [See: Horace Mann v Barbara B 4 C4 1076, T/AT 5/93; Montrose v Superior Court 6 C4 287, T/AT 1/94; Montrose v Admiral 10 C4 645, T/AT 8/95; Fibreboard v Hartford 16 CA4 492, T/AT 8/93]



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1158 Non-smokers are not a protected class under the Unruh Act.



KING v HOFER (Non-smoker) 42 CA4 678 [See: CivC 51; Harris v Capital 52 C3 1142; Gayer v Polk 231 CA3 515; Beaty v Truck 6 C4 1455]



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1159 A trial court may impose terminating sanctions for plaintiff's violation of a discovery order, even though plaintiff was relying on the privilege against self-incrimination; a plaintiff can not avoid a dismissal by voluntarily dismissing without prejudice prior to the hearing on a motion to dismiss.



HARTBRODT v BURKE (Incriminating Recording) 42 CA4 168 [See: Fremont v Superior Court 137 CA3 554; CCP 2023]



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1160 REVIEW DENIED The time to sue for the return of property stolen prior to the 1983 amendment of the statute of limitations begins to run when the owner discovers the identity of the person in possession of the stolen property, without regard to the owner's diligence in discovering that information.



NAFTZGER v AMERICAN NUMISMATIC SOCIETY (Stolen Coins) 42 CA4 421 [See: CCP 338(c); Jolly v Eli Lilly 44 C3 1103; Bernson v Browning-Ferris 7 C4 926, T/AT 7/94]



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1161 A defectively formed limited partnership is treated as a general partnership, with capacity to sue as such, so a timely lawsuit brought by a purported limited partnership stops the running of the statute of limitations, even though the partnership had not yet filed a limited partnership certificate as required by law.



AMERICAN ALTERNATIVE v WINDRIDGE (Wind Turbine) 42 CA4 551 [See: CCP 369.5(a); Tenants Assn v Southers 222 CA3 1293; CorpC 15621(a), 15712(b)(2)]



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1162 After an employee's action against third parties for job related injuries is dismissed for failure diligently to prosecute, the employee may not intervene in the workers' compensation carrier's action against those parties.



FAIRMONT v FRANK (No Intervention) 42 CA4 457 [See: LabC 3853; Buell v CBS 136 CA3 823; Bishop v Silva 234 CA3 1317]



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1163 A funeral director's contract includes an implied covenant to furnish an appropriate and dignified funeral, the breach of which may lead to liability for damages; a funeral director who falsely represents that it is capable of furnishing an appropriate and dignified funeral may be liable for fraud.



WILSON v HOUSTON (Outrageous Undertaker) 42 CA4 1124 [See: Christensen v Superior Court 54 C3 868; Cohen v Groman 231 CA2 1; Allen v Jones 104 CA3 207]



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--------------------

*(T/AT 4/96)

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1164 If a bank customer fails to discover within a reasonable time that the bank has paid forged checks drawn on the customer's account, the bank is not liable unless it failed to use reasonable care; the bank can show that it did use reasonable care by offering evidence that it adhered to its own system for examining checks and that its system is consistent with banking practices in the area.



STORY ROAD v WELLS FARGO (Forged Checks) 42 CA4 1733 [See: CA-UCC 4406; Roy v Wells Fargo 39 CA4 1051, T/AT 12/95]



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1165 A life insurer may be liable in tort for breaching the covenant of good faith and fair dealing if it fails to make a reasonable investigation before rejecting the claim.



MARISCAL v OLD REPUBLIC (Accidental Death) 42 CA4 1617 [See: McCormick v Sentinel 153 CA3 1030; Neal v Farmers 21 C3 910; CA-UCC 1201]



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1166 In stipulating that it was negligent, a defendant waived the right to dispute issues relating to duty and breach, including the right to assert the firefighter's rule.



ASSAD v SOUTHERN PACIFIC (Toxic Fumes) 42 CA4 1609 [See: Neighbarger v Irwin 8 C4 532, T/AT 11/94; Marquez v Mainframe 42 CA4 881, T/AT 3/96]



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1167 A products liability claim against several manufacturers of latex gloves involved too many diverse issues of duty, breach, causation, and damage to be maintained as a class action.



KENNEDY v BAXTER (Latex Gloves) 43 CA4 799 [See: CCP 382; Richmond v Dart 29 C3 462; San Jose v Superior Court 12 C3 447; Osborne v Subaru 198 CA3 646]



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1168 REVIEW DENIED Armed robberies in fast food stores located in the same mall were prior similar incidents sufficient to impose on the landlord of the clothing store in which plaintiff was employed a duty to provide reasonable security patrols to protect her against robbery and rape in the clothing store.



LISA P v BINGHAM (Clothestime Attack) 43 CA4 372 [See: Ann M v Pacific Plaza 6 C4 666, T/AT 2/94; Nola M v USC 16 CA4 421, T/AT 8/93]



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1169 REVIEW DENIED In an action for failure to provide adequate security based on the allegation that a security gate was not functioning properly, plaintiff had the burden of establishing that it was more likely than not that her assailant gained entry by way of the non-functioning security gate and would not have gained entry had the gate been functioning properly.



LESLIE G v PERRY (Parking Lot Rape) 43 CA4 472 [See: San Joaquin Grocery v Trewhitt 80 CA 371; Brautigam v Brooks 227 CA2 547; Krause v Apodaca 186 CA2 413; Nola M v USC 16 CA4 421, T/AT 8/93; Ann M v Pacific Plaza 6 C4 666, T/AT 2/94; Pamela B v Hayden T/AT 7/94]



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1170 REVIEW DENIED A landlord's failure to maintain adequate light and security in a tenants' parking garage, thus causing tenants to park in the street, did not impose on the landlord a duty to protect tenants against attacks in the street.



ROSENBAUM v SECURITY BANK (Dark Garage) 43 CA4 1084 [See: Kwaitkowski v Superior 123 CA3 324; O'Hara v Western 75 CA3 798; Frances T v Village Green 42 C3 490; Medina v Hillshore 40 CA4 477, T/AT 12/95]



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1171 A defendant moving for summary judgment can meet its initial burden either by offering affirmative evidence negating one or more elements of plaintiff's case, or by showing that plaintiff's responses to interrogatories asking for all facts supporting plaintiffs cause of action were factually devoid as to one or more elements, thus shifting to plaintiff the burden of showing that triable issues of fact exist.



BRANTLEY v PISARO (Detached Handrail) 42 CA4 1591 [See: Barnes v Blue Haven 1 CA3 123; CCP 437c; Union Bank v Superior Court 31 CA4 573, T/AT 2/95; FSR v Superior Court 35 CA4 69, T/AT 7/95]



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1172 REVIEW DENIED Regardless of whether defendant's conduct was outrageous, a plaintiff may recover damages for emotional distress unaccompanied by physical injury if defendant negligently breaches a duty arising from a preexisting relationship with the plaintiff. (Disagrees with Bro v Glaser, T/AT 4/94)



MERCADO v LEONG (Negligent Obstetrician) 43 CA4 317 [See: Molien v Kaiser 27 C3 916; Marlene F v Affiliated 48 C3 583; Burgess v SuperCt 2 C4 1064; Bro v Glaser 22 CA4 1398, T/AT 4/94; Underwood v Croy 25 CA4 281, T/AT 6/94]



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1173 REVIEW DENIED If an employer encourages employees to complain about sexual harassment by co-workers and provides a procedure for doing so, an employee making such a complaint is acting within the scope of employment.



FOWLER v HOWELL (Harassment Complaint) 42 CA4 1746 [See: Mary M v City 54 C3 202; Mazzola v Feinstein 154 CA3 305; Perez v Van Groningen 41 C3 962; John R v Oakland USD 48 C3 438]



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1174 A church did not owe a child parishioner a duty to investigate the sexual behavior of a member of the clergy before hiring him, unless it had reason to know that he was likely to commit sexual acts with a child.



ROMAN CATHOLIC BISHOP OF SD v SUPERIOR COURT (Molesting Priest) 42 CA4 1556 [See: Evan F v Hughson 8 CA4 828, T/AT 10/92]



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1175 Under the GovC, a public entity is immune from liability for injuries suffered by an escaping prisoner as a result of her attempt to escape.



LADD v COUNTY (Run-over Runaway) 12 C4 913 [See: GovC 845.8; VehC 17001; Thomas v City 9 C4 1154, T/AT 6/95]



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1176 In a fraud action against the transferor of realty who made false statements in a statutory disclosure statement, plaintiff must establish the actual value of the realty at the time of the transfer, in order to prove actual damage, which is measured by the difference between what plaintiff paid for the realty and what it was actually worth.



SAUNDERS v TAYLOR (No Permit) 42 CA4 1538 [See: CivC 1102.2, 3343; Bagdasarian v Gragnon 31 C2 744]



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1177 Upon entering judgment against an attorney for malpractice in advising a client about how to recover funds wrongfully levied by the IRS, the trial court was correct in granting the attorney a lien against any subsequent recovery the client might obtain from the IRS of the wrongfully levied funds.



WWSM v GREVE, CLIFFORD... (Double Recovery Lien) 43 CA4 517 [See: Munoz v Davis 141 CA3 420; Gorman v Gorman 90 CA3 454]



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1178 REVIEW GRANTED An action against a hospital for spoliation of evidence, based on the allegation that it destroyed fetal monitoring slips and thus preventing plaintiff from establishing its malpractice in delivering him, is not an action arising from professional negligence and is not subject to CCP 425.13 regarding punitive damages claims against health care providers.



CEDARS-SINAI v SUPERIOR COURT (Hospital Spoliation) 43 CA4 50 [See: Augusta v United 13 CA4 4, T/AT 4/93; Coca-Cola v Superior Court 233 CA3 1273; Ernst v Fireman's 14 CA4 930, T/AT 6/93; Smith v Superior Court 151 CA3 491; United v Superior Court 42 CA4 500, T/AT 3/96; Temple v Superior Court 43 CA4 595 T/AT 4/96]



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1179 REVIEW GRANTED An action against a hospital for spoliation of evidence, based on the allegation that it destroyed evidence needed by plaintiff to establish a products liability claim against the manufacturer of hospital equipment, is not an action arising from professional negligence and is not subject to CCP 425.13 regarding punitive damages claims against health care providers.



TEMPLE v SUPERIOR COURT (Hospital Spoliation) 43 CA4 595 [See: Augusta v United 13 CA4 4, T/AT 4/93; Coca-Cola v Superior Court 233 CA3 1273; Ernst v Fireman's 14 CA4 930, T/AT 6/93; Smith v Superior Court 151 CA3 491; United v Superior Court 42 CA4 500, T/AT 3/96; Cedars-Sinai v Superior Court 43 CA4 50, T/AT 4/96]



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1180 If quick trial-setting practices make it impossible for a plaintiff to reasonably comply with the narrow time limits of CCP 425.13, the court retains the inherent power to make an appropriate order to avoid injustice or unfairness, so long as plaintiff can show that s/he acted with reasonable dispatch and diligence and that the inability to comply was not his/her own fault.



GOODSTEIN v SUPERIOR COURT (Fast Track Conflict) 42 CA4 1635 [See: CCP 425.13; Looney v Superior Court 16 CA4 521, T/AT 8/93; Brown v Superior Court 224 CA3 989]



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1181 REVIEW GRANTED When counsel is responsible for noncompliance with local rules, sanctions may be imposed upon counsel, but unless there is evidence that the client was the cause of counsel's failure to comply, it is an abuse of discretion to impose the drastic sanction of dismissal.



GARCIA v MCCUTCHEN (Fast Track Sanction) 43 CA4 262 [See: Moyal v Lanphear 208 CA3 491; Intel v USAIR 228 CA3 1559]



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1182 REVIEW GRANTED A plaintiff who has not complied with FEHA can not maintain an action for employment discrimination on the basis of age.



STEVENSON v SUPERIOR COURT (Hospital Discrimination) 42 CA4 1243 [See: Tameny v ARCO 27 C3 167; Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083; Jennings v Marralle 8 C4 121, T/AT 9/94]



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1183 REHEARING GRANTED An employee who has been terminated because of a disability resulting from a job related injury is not restricted to workers' compensation remedies against the employer, but may maintain a civil action under FEHA.



CITY OF MOORPARK v SUPERIOR COURT (Less Protection) 43 CA4 728 [See: LabC 132a; GovC 12993(a); Usher v American 20 CA4 1520, T/AT 2/94; Angell v Peterson 21 CA4 981, T/AT 3/94; Langridge v Oakland USD 25 CA4 664, T/AT 7/94]



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1184 If a power press was equipped by the manufacturer with a mechanism for bypassing the point-of-operation guard, and the manufacturer never informed the employer about dangers resulting from using the bypass mechanism, the point-of-operation guard provisions of the LabC do not apply, and workers' compensation is the employee's exclusive remedy against the employer for injuries resulting from use of the bypass mechanism.



AGUILERA v HENRY SOSS (Point of Operation) 42 CA4 1724 [See: LabC 4558; Award v Superior Court 228 CA3 1128]



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1185 REVIEW DENIED An employer who has paid workers' compensation benefits to an employee for a job related injury is entitled to intervene seeking reimbursement in the employee's California tort action against third parties responsible for the injury, even though the employee's workers' compensation claim was made in a state that does not allow an employer the rights of intervention and reimbursement.



DAILEY v DALLAS CARRIERS (Intervention Conflict) 43 CA4 720 [See: Nedlloyd v Superior Court 3 C4 459, T/AT 11/92; Carroll v Lanza 349 US 408; Alaska Packers v Industrial 294 US 532; Crider v Zurich 380 US 39]



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1186 REVIEW DENIED Although the National Bank Act precludes a wrongful termination action by a discharged bank president, it does not preclude an action to enforce a reasonable severance pay provision of the employment contract.



MARDULA v RANCHO DOMINGUEZ BANK (Terminated President) 43 CA4 790 [See: 12 USC 24; Aalgaard v Merchants 224 CA3 674]



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1187 REVIEW GRANTED Even though the carrier notified the insured that the insured's aircraft liability policy was canceled for non-payment of premium, the policy remained in force because the carrier failed to properly notify the PUC as required by statute and a mandatory provision of the policy.



ESCOBEDO v EST OF SNIDER (Endless Policy) 42 CA4 922 [See: PUC 24361; Fireman's v Allstate 234 CA3 1154; Transamerica v Tab 12 C4 389, T/AT 2/96]



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1188 REVIEW GRANTED In the absence of specific policy language to the contrary, a liability carrier may not recoup from its insured the costs of defending claims for which a potential for coverage existed but which were ultimately determined not to be covered; however, a carrier may recoup the costs allocated to defending claims for which there was never any potential for coverage but which were defended because they were joined with other claims for which there was a potential for coverage.



BUSS v SUPERIOR COURT (Non-covered Claims) 42 CA4 1663 [See: Montrose v Superior Court 6 C4 287, T/AT 1/94; Horace Mann v Barbara B 4 C4 1076, T/AT 5/93; Hartford v Superior Court 23 CA4 1774, T/AT 5/94; Haskel v Superior Court 33 CA4 963, T/AT 4/95; Hogan v Midland 3 C3 553]



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1189 A claim under CCP 1021.6 for attorney fees by the successful party in an action for implied indemnity is not barred by a good faith settlement of the underlying case.



JOHN HANCOCK v SETSER (Indemnity Fees) 42 CA4 1524 [See: CCP 1021.6, 877.6; Kantor v Housing 8 CA4 424, T/AT 10/92]



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1190 A trial court has the power to fix the reasonable fee a party must pay to depose an adversary's designated expert witness; the order is appealable by the expert witness; the expert witness may contract for payment by the party who designated him/her of any portions of his/her fee in excess of that fixed by the court.



MARSH v MOUNTAIN ZEPHYR (Expert's Fee) 43 CA4 289 [See: CCP 2034; Sjoberg v Hastorf 33 C2 116]

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1191 REVIEW DENIED If a case is sent to judicial arbitration within the last six months of the five year period after which it is dismissable for failure diligently to prosecute, the running of the five year period is tolled from the four-and-one-half-year point until a request for trial de novo is filed; however, upon filing the request for trial de novo, plaintiff has an obligation to exercise reasonable diligence in requesting a trial date before the end of the statutory period.



LEE v PARK (Missed Deadline) 43 CA4 305 [See: CCP 583.310, 583.360, 1141.17; Drummond v Murata 227 CA3 44, Howard v Thrifty 10 C4 424, at 8/95; Dresser v Bindi 221 CA3 1493]



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1192 The amended statute of limitations on a claim for the conversion of art objects applies to a claim on which the then-existing statute of limitations had not yet run when the statute was amended in 1983.



SOCIETY OF CA PIONEERS v BAKER (Cane Handle) 43 CA4 774 [See: CCP 338; Naftzger v American 42 CA4 421, T/AT 3/96]



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1193 REVIEW DENIED A partner who has the authority to sell partnership assets may be liable for conversion if s/he misappropriates the proceeds of such a sale, and a person to whom those proceeds are subsequently transferred may also be liable for conversion if s/he had actual or constructive notice that they were partnership assets being used to satisfy a personal obligation of the transferor.



OAKDALE v FONG (Partnership Conversion) 43 CA4 539 [See: People v Sobiek 30 CA3 458]



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1194 The rule articulated in Freeman, abolishing tort liability for denying in bad faith that a contract exists (i.e., the Seaman's tort), applies to a claim that arose before but was asserted after Freeman was decided.



NORAGER v NAKAMURA (Denial of Conract) 42 CA4 1817 [See: Seaman's v Standard Oil 36 C3 752; Freeman & Mills v Belcher 11 C4 85, T/AT 10/95]



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1195 REVIEW GRANTED Prop 51 applies to an action for asbestos related disease if exposure to asbestos caused plaintiff, after June 4, 1986, to undergo physiological changes that, to a reasonable degree of medical certainty, would result in the condition giving rise to the action.



PETERSON v OWENS-CORNING (Asbestos Accrual) 43 CA4 1028 [See: CivC 1431.2; Evangelatos v Superior Court 44 C3 1188; Buttram v Owens-Corning T/AT 4/95; Coughlin v Owens-Illinois T/AT 3/94]



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--------------------

*(T/AT 5/96)

--------------------

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1196 A judo instructor owes a student a duty to avoid reckless conduct, but does not have a duty to avoid taking the student beyond his/her capabilities; making the student reach beyond his/her capabilities is an inherent risk of the activity, resulting in a primary assumption of the risk.



BUSHNELL v JAPANESE-AMERICAN (Judo Instructor) 43 CA4 525 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92; Tan v Goddard 13 CA4 1528, T/AT 5/93; Galardi v Seahorse 16 CA4 817, T/AT 8/93; Wattenbarger v Cincinnati Reds 28 CA4 946, T/AT 11/94; Fidopiastis v Hirtler T/AT 6/95; Regents v Superior Court 41 CA4 1040, T/AT 2/96]



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1197 REVIEW DENIED In deciding whether a defendant violated the federal Food, Drug, and Cosmetic Act, and thus may be presumed to be negligent, a jury is competent to determine whether a protein known as L-Tryptophan is a "food" or a "food supplement" as defined by the act.



DIROSA v SHOWA DENKO (L-Tryptophan) 44 CA4 799 [See: EvC 669; Sierra-Bay v Superior Court 227 CA3 318; 21 USC 301 etseq; US v 29 Cartons 987 F2 33]



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1198 REVIEW GRANTED A judgment cannot include damages for the pain, suffering, or emotional distress of a plaintiff who died while an appeal of the judgment was pending.



SULLIVAN v DELTA (Pending Appeal) 43 CA4 1159 [See: CCP 377.34; Love v Wolf 249 CA2 822; Williamson v Plant 23 CA4 1406, T/AT 5/94]



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1199 Emotional distress damages are not recoverable under California's Song-Beverly Consumer Warranty Act and should be stricken from a judgment in which they were erroneously included, but erroneously permitting the jury to award damages for emotional distress did not taint the rest of the judgment.



BISHOP v HYUNDAI (Emotional Lemon) 44 CA4 750 [See: CivC 1793 etseq; Kwan v Mercedes 23 CA4 174]



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1200 REVIEW DENIED Although punitive damages can not be awarded against the estate of a deceased, they can be awarded against a corporation for acts it committed when it was owned by a person now deceased.



RODDENBERRY v RODDENBERRY (Star Trek) 44 CA4 634 [See: CCP 377.42; Evans v Gibson 220 C 476]



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1201 A health care provider who fails to object to a punitive damages claim in an action against it arising from professional negligence thereby waives the provisions of CCP 425.13 requiring plaintiff to seek leave of the court to include such a claim; an appellate court should not declare an award of punitive damages excessive unless the entire record indicates that the award resulted from passion and prejudice.



VALLBONA v SPRINGER (Cellulite Fraud) 43 CA4 1525 [See: CCP 425.13; Villa v Superior Court 233 CA3 8; Neal v Farmers 21 C3 910]



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1202 REVIEW DENIED A trial court cannot enter judgment on a written settlement agreement unless the agreement was personally signed by the litigant against whom enforcement is sought.



CORTEZ v KENNEALLY (Party's Signature) 44 CA4 523 [See: CCP 664.6; Levy v Superior Court 10 C4 578, T/AT 7/95; Johnson v Dept of Corrections 38 CA4 1700, T/AT 11/95; Murphy v Padilla 42 CA4 707, 3/96]



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1203 Statements that the harsh language of a college basketball coach did psychological harm to players were expressions of opinion, constitutionally protected against defamation liability.



CAMPANELLI v REGENTS (Basketball Coach) 44 CA4 572 [See: Gertz v Robert Welch 418 US 323; Gregory v McDonnell 17 C3 596; Baker v Herald 42 C3 254; Good Government v Superior Court 22 C3 672]



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1204 The SLAPP statute may apply to actions arising from statements made during the course of political campaigns; statements characterizing as unethical a candidate's conduct of a private law practice while employed by the state were expressions of opinion and thus not subject to defamation liability.



BEILENSON v SUPERIOR COURT (Defamed Candidate) 44 CA4 944 [See: CCP 425.16; Dixon v Superior Court 30 CA4 733, T/AT 1/95; Wilcox v Superior Court 27 CA4 809, T/AT 9/94; Church v Wollersheim 42 CA4 628, T/AT 3/96; Averill v Superior Court 42 CA4 1170, T/AT 3/96]



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1205 An injunction against disclosing information obtained during the course of or as a result of a relationship with a former spouse about the former spouse's substance abuse and sexual misconduct was an unconstitutional prior restraint on expression.



GILBERT v NATIONAL ENQUIRER (Little House) 43 CA4 1135 [See: NY Times v US 403 US 713; Organization for a Better Austin v Keefe 402 US 415; Wilson v Superior Court 13 C3 652]



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1206 CivC 47 grants absolute immunity from liability for any tort except malicious prosecution as a result of reports made to the Insurance Commissioner or public prosecutor about suspected workers' compensation fraud, even if the reports were made in bad faith.



FREMONT v SUPERIOR COURT (WC Fraud) 44 CA4 867 [See: InsC 1877.5; CivC 47; Cote v Henderson 218 CA3 796; Passman v Torkan 34 CA4 607, T/AT 6/95; Hunsucker v Sunnyvale Hilton 23 CA4 1498, T/AT 5/94]



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1207 REVIEW GRANTED A landowner's statutory immunity from liability for injuries sustained by a person committing a felony on the premises does not extend to intentional acts of the landowner, such as shooting the felon, but a landowner is privileged to use reasonable force in defense of self and property; a nolo plea in a criminal prosecution is not conclusive evidence of guilt in a subsequent civil proceeding.



CALVILLO-SILVA v HOME GROCERY (Robbery Shooting) 43 CA4 1720 [See: CivC 847; Boyer v Waples 206 CA2 725; Lowry v Standard 54 CA2 782; Teitelbaum v Dominion 58 C2 601; People v Goodrum 228 CA3 397]



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1208 REVIEW GRANTED In an inverse condemnation action, public agencies may be jointly and severally liable, and comparative negligence by the plaintiff is irrelevant.



ELLIS v STATE (Pacific Palisades Landslide) 44 CA4 170 [See: US Const Am V; CA Const I, 19; Akins v State (RevGrtd), T/AT 3/96]



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1209 If an action against a public entity is timely under the filing requirements of the Government Tort Claims Act, the action is timely under the applicable statute of limitations.



MASSA v SCRTD (Excessive Force) 43 CA4 1217 [See: GovC 911.2, 945.6; CCP 340; Schmidt v SCRTD 14 CA4 23, T/AT 5/93]



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1210 REVIEW DENIED Even if it contains all the information that a notice of intention to sue for malpractice would contain, a malpractice claim filed under the GovC against a county hospital is not a notice of intention to sue for malpractice unless the plaintiff intends it to be.



WURTS v COUNTY OF FRESNO (Double Notice) 44 CA4 380 [See: CCP 364; GovC 911.2, 945.4, 945.6; Woods v Young 53 C3 315; Anson v County 202 CA3 1195; Phillips v Desert 49 C3 699; Watts v Valley 8 CA4 1050, T/AT 10/92]



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1211 If a party knows an action against a public entity is without merit, a tactical decision to maintain it does not qualify as "reasonable cause" for the purpose of determining whether to impose liability against the party for defense costs of the public entity.



HALL v REGENTS (Tactical Refusal) 43 CA4 1580 [See: CCP 1038; Knight v City 4 CA4 918]



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1212 An employer's refusal to transfer an employee to a position with the same responsibilities, advancement opportunities, and salary as the position already held by the employee can not be the basis of an action for discriminatory failure to promote because such a transfer would not be a promotion; demotion and reduction in pay is not constructive discharge from employment; if an employer offers evidence of a legitimate reason for an adverse employment decision made after an employee complained against the employer to a public agency, the burden shifts to the employee to show that the reason given by the employer is a pretext for retaliation.



ADDY v BLISS & GLENNON (Demoted Assistant) 44 CA4 205 [See: McDonnell Douglas v Green 411 US 792; Turner v Anheuser-Busch 7 C4 1238, T/AT 8/94]



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1213 REVIEW GRANTED There is no common law tort action for employment discrimination on the basis of age; employers that are non-profit religious organizations are exempt from provisions of FEHA.



KELLY v METHODIST HOSP (Religious Employer) 44 CA4 719 [See: GovC 12920 etseq; Jennings v Marralle 8 C4 121, T/AT 9/94; Stevenson v Superior Court 42 CA4 1243, T/AT 4/96; Brooks v Bell T/AT 11/94]



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1214 REVIEW DENIED Wrongful termination is an invasion of a personal right and is subject to the one year statute of limitations set forth in CCP 340.



BARTON v NEW UNITED (Wrongful Termination S/L) 43 CA4 1200 [See: Hentzel v Singer 138 CA3 290; CCP 340(3), 339(1); Edwards v Fresno 38 CA3 702]



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1215 REVIEW DENIED CERCLA provides that state statutes of limitations on actions brought under its provisions can not begin running until the discovery of environmental contamination, so the California statute imposing a 10 year maximum period of limitations on actions arising from latent construction defects regardless of when the defects are discovered is invalid as applied to CERCLA actions.



ANGELES CHEMICAL v SPENCER (CERCLA S/L) 44 CA4 112 [See: Key Tronic v US 114 SCt 1960; 42 USC 9601 etseq; CCP 337, 338, 337.15; North Coast v Nielsen 17 CA4 22, T/AT 9/93]



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1216 For the purpose of determining when the statute of limitations begins to run, a nuisance or trespass should be considered permanent, rather than continuing, unless plaintiff shows that it can be abated by reasonable means and at reasonable cost.



MANGINI v AEROJET (Heavy Metal) 12 C4 1087 [See: Spaulding v Cameron 38 C2 265; Baker v Burbank 39 C3 862; Mangini v Aerojet (I) 230 CA3 1125; Mangini v Aerojet (II) T/AT 8/94]



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1217 REVIEW DENIED A condition or activity is not a nuisance per se unless a statute expressly declares it to be so; a condition or activity is not a public nuisance unless it affects an entire community or a considerable number of people; a condition of realty created lawfully and with the consent of the landowner may be privileged against nuisance liability to subsequent owners of the land; for the purpose of determining when the statute of limitations begins to run, a nuisance or trespass should be considered permanent, rather than continuing, unless plaintiff shows that it can be abated by reasonable means and at reasonable cost.



BECK v SOUTHERN PACIFIC (Buried Reservoir) 44 CA4 1160 [See: CivC 3479; Aetna v Industrial 30 C2 388; Eaton v Klimm 217 C 362; Venuto v Owens-Corning 22 CA3 116; Biber v O'Brien 138 CA 353; Mangini v Aerojet (I) 230 CA3 1125; Mangini v Aerojet (II) 12 C4 1087, T/AT 5/96]



------------



1218 An attorney's malpractice consisting of failing to obtain a trial prior to the death of the plaintiff-client, thus preventing the recovery of damages for pain and suffering, resulted in actual harm, and the statute of limitations began running on it, when the plaintiff died.



GAILING v ROSE, KLEIN... (No Preference) 43 CA4 1570 [See: CCP 340.6, 377.34; Laird v Blacker 2 C4 606; Finlayson v Sanbrook 10 CA4 1436, T/AT 1/93; Pleasant v Celli 18 CA4 841, T/AT 11/93; ITT v Niles 9 C4 245, T/AT 2/95; International v Fedderson 9 C4 606, T/AT 4/95; Adams v Paul 11 C4 583, T/AT 12/95]



------------



1219 So long as an attorney malpractice complaint against "doe" defendants is amended to substitute the true names of defendants within three years after filing, the amended complaint relates back to the date the original complaint was filed and is timely if the original complaint was timely.



WINDING CREEK v McGLASHAN (Malpractice Doe) 44 CA4 933 [See: Munoz v Purdy 91 CA3 942; CCP 583.210, 583.250]



------------



1220 REVIEW GRANTED / REVIEW DISMISSED Before imposing the drastic sanction of dismissal for fast track violations, a court should conduct a hearing to determine the culpability of counsel; if rule violations were counsel's fault, the court may impose sanctions on counsel but may not dismiss the case.



PACIFIC SOFTWARE v ARCHER (Counsel's Culpability) 44 CA4 356 [See: GovC 68608; CCP 575.2; Intel v USAIR 228 CA3 1559; State v Bragg 183 CA3 1018]



------------



1221 REVIEW DENIED Under a "claims made" policy, the carrier had no obligation to defend a claim for attorney malpractice committed when the defendant was not a member of the insured law firm, even though the claim was made after defendant became a member of the firm.



TAUB v FIRST STATE (Claims Made) 44 CA4 811 [See: Waller v Truck 11 C4 1, T/AT 10/95]



------------



1222 REVIEW GRANTED A two year incontestability provision in a life insurance policy applies even though the insured made gross misrepresentations concerning his health and sent an impostor to take the medical examination, but the carrier's refusal to pay a claim for benefits under the policy was not necessarily in bad faith.



AMEX v SUPERIOR COURT (Impostor) 43 CA4 1588 [See: Dibble v Reliance 170 C 199; NY Life v Hollender 38 C2 73; Coodley v NY Life 9 C2 269; Schaefer v California-Western 262 CA2 840; John Hancock v Markowitz 62 CA2 388; Trousdell v Equitable 55 CA2 74; Braun v NY Life 46 CA2 335; Maslin v Columbian 3 FS 368]



------------



1223 REVIEW DENIED An insured is not required to pursue administrative remedies before suing a workers' compensation carrier for breach of contract and bad faith.



LANCE v REPUBLIC (Bad Faith WC) 44 CA4 194 [See: Moradi-Shalal v Fireman's 46 C3 287; Security v SCIF 17 CA4 887, T/AT 10/93; Tricor v SCIF 30 CA4 230, T/AT 12/94]



------------



1224 Under a CGL policy that insured an employer against liability for false imprisonment and defamation, the insurer was not obligated to defend against a claim for sexual harassment, even though the complaint alleged that the plaintiff was embraced against her will and that public deprecation resulted from the harassment.



MOORE v CONTINENTAL (Public Deprecation) 44 CA4 10 [See: Gray v Zurich 65 C2 263; Waller v Truck 11 C4 1, T/AT 10/95; Horace Mann v Barbara B 4 C4 1076, T/AT 5/93]



------------



1225 DEPUBLISHED An "absolute pollution" exclusion in a CGL policy excludes liability coverage for personal injury sustained by a claimant as a result of inhaling toxic fumes released by the insured's product while claimant was working on it at a construction site.



EMPLOYERS v ST PAUL (Absolute Pollution) 44 CA4 545 [See: Titan v Aetna 22 CA4 457]



------------



1226 REHEARING GRANTED "Advertising injury" coverage in a CGL policy extends to a claim for trademark infringement.



LEBAS v ITT HARTFORD (Advertising Injury) 44 CA4 531 [See: Bank of the West v Superior Court 2 C4 1254, T/AT 9/92]

------------



1227 In construing the language of a homeowner's policy excluding coverage for latent defects, a latent defect is one that is not readily observable and not discoverable to any but the most searching inspection.



SCOTT v CONTINENTAL (Latent Defect) 44 CA4 24 [See: Carty v American 7 CA4 399; Chadwick v Fire 17 CA4 1112, T/AT 10/93; Waller v Truck 11 C4 1, T/AT 10/95]



------------



1228 In a trial without jury, unless there is a waiver or stipulation to the contrary, a party is entitled to have all portions of a bifurcated trial that depend on weighing evidence and credibility tried by the same judge; if that judge is unavailable to do so, a mistrial must be declared.



EUROPEAN BEVERAGE v SUPERIOR COURT (Same Judge) 43 CA4 1211 [See: Guardianship of Sullivan 143 C 462; Bodine v Superior Court 209 CA2 354; Rose v Boydston 122 CA3 92]

------------



1229 REVIEW DENIED Except for the reasons listed in CCP 1286.2, a trial court may not disturb the award of an arbitrator to which an uninsured motorist claim was referred pursuant to policy language mandated by the InsC.



PORTER v GOLDEN EAGLE (Uninsured Arbitration) 43 CA4 1282 [See: CCP 1286.2; InsC 11580.2; Advanced Micro v Intel 9 C4 362; Moncharsh v Heily 3 C4 1]



------------



1230 A trial court may not amend a judgment to add as a judgment debtor a corporation that does not yet exist and over which the court has no jurisdiction.



MILROT v STAMPER (Non-existent Debtor) 44 CA4 182 [See: Westport v Garrison 19 CA3 974]



------------



1231 FEHA provisions prohibiting housing discrimination on the basis of marital status protect the rights of unmarried couples to rent an apartment and do not violate a commercial landlord's constitutional right to the free exercise of religion even though the landlord's religious beliefs prohibit cohabitation or sexual contact between unmarried persons.



SMITH v FEHC (Unmarried Couple) 12 C4 1143 [See: Smith v CFEH T/AT 6/94; Emp Div v Smith 494 US 872; 42 USC 2000 etseq]



------------

--------------------

*(T/AT 6/96)

--------------------

------------



1232 The owner of commercial premises leased for a use involving admission of the public owes members of the public a duty of reasonable care to protect them against dangerous conditions of the realty of which the owner knows or should know, including permanent conditions in existence when possession is transferred to a lessee.



LOPEZ v SUPERIOR COURT (Produce Stand) 45 CA4 705 [See: Gray v America West 209 CA3 76; Portillo v Aiassa 27 CA4 1128, T/AT 9/94]



------------



1233 An athletic instructor has a duty not to increase the inherent risks of a sport by taking students beyond their capabilities; students of athletics do not primarily assume the risk that an instructor will take them beyond the limit of their capability; an "advanced football" instructor did not take students beyond the limit of their capabilities by encouraging them to intercept passes during a "no contact" drill.



FORTIER v LOS RIOS COMM COLL DIST (Advanced Football) 45 CA4 430 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92; Galardi v Seahorse 16 CA4 817, T/AT 8/93; Tan v Goddard 13 CA4 1528, T/AT 5/93; Morgan v Fuji 34 CA4 127, T/AT 5/95; Branco v Kearny 37 CA4 184, T/AT 9/95; Bushnell v Japanese-American 43 C4 525, T/AT 5/96]



------------



1234 REVIEW DENIED A real estate appraiser who knows that the mortgage broker who hired him/her will use the appraisal report to influence potential lenders owes a duty to potential lenders.



SODERBERG v McKINNEY (Negligent Appraisal) 44 CA4 1760 [See: Christiansen v Roddy 186 CA3 780; Bily v Arthur Young 3 C4 370, T/AT 11/92; FSR v Superior Court 35 CA4 69, T/AT 7/95; Ord v Surplus Lines 38 CA4 1276, T/AT 11/95; Roy v Wells Fargo 39 CA4 1051, T/AT 12/95; Randi W v Livingston (RevGrtd) T/AT 1/96]



------------



1235 A fiduciary who issues checks to its principal has no duty to inspect the indorsements on the checks to assure that they are being indorsed by the payee.



LaMONTE v SANWA BANK (Unchecked Indorsement) 45 CA4 509 [See: Lee v Escrow Consultants 210 CA3 915; Schneider v Union Oil 6 CA3 987]



------------



1236 REVIEW DENIED In an attorney malpractice action, plaintiff is not entitled to recover damages for emotional distress resulting from tax liability that could have been avoided had the malpractice not occurred.



CAMENISCH v SUPERIOR COURT (Tax Distress) 44 CA4 1689 [See: Marlene F v Affiliated 48 C3 583; Christensen v Superior Court 54 C3 868; Rowland v Christian 69 C2 108; Holliday v Jones 215 CA3 102; Pleasant v Celli 18 CA4 841, T/AT 8/93; Bro v Glaser 22 CA4 1398, T/AT 4/94; Mercado v Leong 43 CA4 317, T/AT 4/96]



------------



1237 If there is a possibility of a jurisdictionally appropriate verdict, even though such a verdict is unlikely, a case should not be transferred from Superior Court to Municipal Court.



MALDONADO v SUPERIOR COURT (Municipal Court Transfer) 45 CA4 397 [See: Walker v Superior Court 53 C3 257; Kent v Superior Court 2 CA4 1392]



------------



1238 REVIEW DENIED A trial court should not permit discovery of defendant's financial condition under CivC 3295, unless plaintiff demonstrates a likelihood of prevailing in its claim for punitive damages.



CERF v SUPERIOR COURT (Puni's Discovery) 45 CA4 447 [See: Kerr v Rose 216 CA3 1551; Looney v Superior Court 16 CA4 521, T/AT 8/93]



------------



1239 Judgment can not be entered on a written stipulation of settlement unless it is signed by all settling litigants; however, the signature of an insurance carrier's representative on a stipulation for settlement within policy limits may be accepted in place of the signature of the litigant represented by that carrier; even if the trial court does not enter judgment on it, a settlement agreement may be enforced by action for breach of contract.



ROBERTSON v KOU-PIN CHEN (MSC Statement) 44 CA4 1290 [See: CCP 664.6; Levy v Superior Court 10 C4 578, T/AT 7/95; Johnson v Dept of Corrections 38 CA4 1700, T/AT 11/95; Murphy v Padilla 42 CA4 707, T/AT 3/96; Cortez v Kenneally 44 CA4 523, T/AT 5/96]



------------



1240 REVIEW GRANTED Whether the applicable statute of limitations on medical malpractice is one or three years, a notice of intention to sue served during the last 90 days of the statutory period extends the period of limitations for 90 days.



RUSSELL v STANFORD UNIVERSITY HOSPITAL (Outside Limit) 44 CA4 1798 [See: CCP 340.5, 364; Woods v Young 53 C3 315; Rewald v San Pedro 27 CA4 480, T/AT 9/94]



------------



1241 The period of limitations for medical malpractice is not tolled while the plaintiff is imprisoned on a criminal charge.



HOLLINGSWORTH v KOFOED (Incarcerated Plaintiff) 45 CA4 423 [See: CCP 340.5, 352.1; Fogarty v Superior Court 117 CA3 316]



------------



1242 REVIEW DENIED In an action for professional negligence against an architect, plaintiff's attorney may satisfy the statutory requirement of consultation with a professional in the same discipline as defendant by consulting with a structural engineer.



PONDEROSA v McCLELLAN (Structural Engineer) 45 CA4 913 [See: CCP 411.35; Guinn v Dotson 23 CA4 262, T/AT 4/94]



------------



1243 REVIEW DENIED Defamation liability cannot be imposed for expressions of opinion or false assertions of fact not likely to injure the reputation; the head of a county agency enjoys statutory immunity from defamation liability for statements made within the scope of discretionary powers; a person who attempts to influence public opinion as to how school children should protect themselves during an earthquake is a limited issue public figure and cannot maintain a defamation action without establishing that the defendant knew the falsity of the statements s/he published or acted with a reckless disregard for the truth; if they are based on publication of statements by defendant, suits for false light privacy, interference with contract, and interference with economic relations must satisfy the constitutional requirements that apply to defamation actions.



COPP v PAXTON (Earthquake Disagreement) 45 CA4 829 [See: CivC 45, 47; Gregory v McDonnell Douglas 17 C3 596; Fletcher v SJ Mercury News 216 CA3 172; Kilgore v Younger 30 C3 770; Barr v Matteo 360 US 564; Sanborn v Chronicle 18 C3 406; Royer v Steinberg 90 CA3 490; NY Times v Sullivan 376 US 254; Gertz v Robert Welch 418 US 323; Rudnick v McMillan 25 CA4 1183, T/AT 7/94; St Amant v Thompson 390 US 727]



------------



1244 Tort liability should not be imposed for interference with an invalid or unenforceable contract; liability for interference with economic relations (i.e., prospective business advantage) should not be imposed unless the defendant's conduct was wrongful apart from the fact that it interfered with plaintiff's business relationship.



PMC v SABAN (Power Rangers) 45 CA4 579 [See: Kasparian v County 38 CA4 242, T/AT 10/95; PG&E v Bear Stearns 50 C3 1118; Settimo v Environ 14 CA4 842, T/AT 5/93; Della Penna v Toyota 11 C4 376, T/AT 12/95]



------------



1245 REVIEW DENIED False imprisonment liability can be imposed for a confinement accomplished by fraud and, if injury resulted, even though the plaintiff was not contemporaneously aware of the confinement.



SCOFIELD v CRITICAL AIR MEDICINE (Deceptive Evacuation) 45 CA4 990 [See: Fermino v Fedco 7 C4 701, T/AT 7/94; Molko v Holy Spirit 46 C3 1092; BAJI 7.60; Whittaker v Sandford 85 A 399; Herring v Boyle 149 EngRep 1126]



------------



1246 REVIEW GRANTED To prevent an abusive workplace, a trial court can constitutionally enjoin the use of ethnic epithets in the workplace, but it can not enjoin their use outside the workplace.



AGUILAR v AVIS (Ethnic Abuse) 45 CA4 933 [See: Kelly-Zurian v Wohl 22 CA4 397, T/AT 3/94; Daniels v Essex 937 F2 1264; EEOC v Beverage 897 F2 1067; RAV v St Paul 505 US 377]



------------



1247 A plaintiff suing for employment discrimination on the basis of race does not have to show that employees who were not members of his/her ethnic group received better treatment.



HEARD v LOCKHEED (Disparate Treatment) 44 CA4 1735 [See: McDonnell Douglas v Green 411 US 792; St Mary's v Hicks 509 US 502; Addy v Bliss & Glennon 44 CA4 205, T/AT 5/96]



------------



1248 REVIEW DENIED An employer who fraudulently conceals from an employee the existence of an injury and its connection with employment may be liable in tort to the employee, but only if the employer had actual subjective knowledge of plaintiff's injury and its connection to the workplace.



HUGHES AIRCRAFT v SUPERIOR COURT (Concealed Injury) 44 CA4 1790 [See: LabC 3600 etseq; Johns-Manville v Superior Court 27 C3 465; Foster v Xerox 40 C3 306; Santiago v Firestone 224 CA3 1318; Davis v Lockheed 13 CA4 519, T/AT 4/93]



------------



1249 An insurer may be liable to an insured in tort for bad faith refusal to defend as required by the policy.



CAMPBELL v SUPERIOR COURT (Refusal to Defend) 44 CA4 1308 [See: Foley v Interactive 47 C3 654; Comunale v Traders 50 C2 654; Camelot v Scottsdale 27 CA4 33, T/AT 8/94]



------------



1250 REVIEW DENIED Although there is no tort action for violating the unfair insurance practices provisions of the InsC, some conduct that violates those provisions might result from bad faith and thus be the basis for a common law bad faith action or constitute unfair business practices and thus be the basis of an action under the Unfair Competition Act.



STATE FARM v SUPERIOR COURT (Earthquake Policies) 45 CA4 1093 [See: B&PC 17200 etseq; InsC 790.03; Moradi-Shalal v Fireman's 46 C3 287; Manufacturers v Superior Court 10 C4 257, T/AT 7/95; Farmers v Superior Court 2 C4 377]



------------



1251 REVIEW DENIED Under liability policies issued to asbestos manufacturers, bodily injury coverage is continuously triggered from the time the claimant is first exposed to the insured's products until the claimant dies or asserts a claim; exclusions for occurrences that were "expected or intended" apply only if the insured subjectively knew or believed that the injury was practically certain to occur or acted for the purpose of causing it; liability for the presence of asbestos fibers on realty is included in property damage liability coverage and is triggered when the asbestos product is installed on the property or when fibers are released from asbestos products that were previously installed.



ARMSTRONG v AETNA (Asbestos Coverage) 45 CA4 1 [See: Montrose v Admiral 10 C4 645, T/AT 8/95; Chu v Canadian 224 CA3 86]



------------



1252 Under a policy covering liability for an occurrence arising from the use of a motor vehicle, the carrier has no obligation to indemnify the insured against liability resulting from knowingly using his motor vehicle to aid in a drive-by shooting.



INTERINSURANCE v FLORES (Drive-by Coverage) 45 CA4 661 [See: Waller v Truck 11 C4 1, T/AT 10/95; Chu v Canadian 224 CA3 86; InsC 533]



------------



1253 Under an employer's liability policy that excluded coverage for personal injury resulting from termination or defamation, the carrier had no obligation to defend the insured against claims for emotional distress resulting from termination and defamation; a workers' compensation carrier had no duty to defend an action for emotional distress resulting from defamatory statements made by the insured about a former employee after the employee had been terminated.



FRANK & FREEDUS v ALLSTATE (Post-termination Defamation) 45 CA4 461 [See: Loyola Marymount v Hartford 219 CA3 1217; La Jolla B&T v Industrial 9 C4 27, T/AT 1/95]



------------



1254 REVIEW DENIED If 653 separate thefts of the insured's product were the result of a conspiracy orchestrated by the Russian mafia, the thefts were a single "occurrence" and were subject to only one deductible under a policy insuring against such losses.



EOTT v STOREBRAND INS (Orchestrated Thefts) 45 CA4 565 [See: Bank of the West v Superior Court 2 C4 1254, T/AT 9/92; Peco v Boden 64 F3 852]



------------



1255 REVIEW DENIED Under the Barry Keene Underground Storage Tank Cleanup Trust Fund Act of 1989, "occurrence" has the same meaning it has in CGL insurance policies.



CALDO OIL v STATE WATER RESOURCES CONTROL BD (Leaky Tank Fund) 44 CA4 1821 [See: H&SC 25299.10]



------------



1256 Under a "claims made" liability policy, the carrier has no obligation to defend the insured against claims made after the policy period even though they are connected with claims made during the policy period.



HOMESTEAD v AMERICAN EMPIRE (Claims Made) 44 CA4 1297 [See: Chamberlin v Smith 72 CA3 835; Montrose v Admiral 10 C4 645, T/AT 8/95]



------------



1257 If a liability insurer sends the insured a timely notice of renewal stating that continued coverage is contingent on payment of the premium before the end of the period for which premiums have already been paid, and the insured fails to pay in time, coverage expires at the end of the period, without further notice by the carrier.



KATES v WORKMEN'S (Expired Policy) 45 CA4 494 [See: National v California Casualty 139 CA3 336; Fujimoto v Western 86 CA3 305; InsC 660 etseq]



------------



1258 REVIEW DENIED A policy exclusion for losses resulting from the insured's neglect in failing to preserve the property when it is endangered by a peril applies only to acts or omissions by the insured with knowledge of a readily identifiable, imminent, and real peril endangering the property, and does not apply to neglect by the insured which merely creates a situation in which a loss is more likely to occur.



TUCHMAN v AETNA (Insured's Neglect) 44 CA4 1607 [See: Bank of the West v Superior Court 2 C4 1254, T/AT 10/92]



------------



1259 Parties to contractual arbitration cannot, by stipulation, confer on a court the jurisdiction to reverse decisions of an arbitrator because of errors in the law.



OLD REPUBLIC v ST PAUL (Stipulated Jurisdiction) 45 CA4 631 [See: Moncharsh v Heily & Blase 3 C4 1]



------------



1260 Suspension of plaintiff's corporate powers for failure to pay taxes must be raised by demurrer or as an affirmative defense in the original answer and is not effective as a defense if raised for the first time at trial.



COLOR-VUE v ABRAMS (Suspension of Powers) 44 CA4 1599 [See: Lucas v Murai Farms 15 CA4 1578, T/AT 8/93; Hydrotech v Oasis 52 C3 988; Friendly v Silva 31 CA3 220]



------------



1261 Service of California process on a Canadian citizen in Canada requires compliance with the Hague Service Convention, unless the trial court orders service by publication, which it may not do unless the party seeking the order made a diligent and unsuccessful attempt to locate the person to be served in Canada.



KOTT v SUPERIOR COURT (Canadian Service) 45 CA4 1126 [See: 28 USC FRCP 4App; CCP 413.10; Volkswagenwerk v Schlunk 486 US 694; Vorburg v Vorburg 18 C2 794]



------------



1262 Failure to seek administrative mandamus does not collaterally estop an action under the federal Civil Rights Act if the challenged order did not result from a proceeding in which the law requires a hearing.



McDANIEL v BOARD OF EDUCATION (Early Retirement) 44 CA4 1618 [See: CCP 1094.5; Briggs v City 40 CA4 637; Swartzendruber v City 3 CA4 896; Miller v County 39 F3 1030; Keeler v Superior Court 46 C2 596]

------------



1263 A trial court may not permit an expert designated on a supplemental expert witness list to testify in place of the originally designated expert on the same subject matter.



BASHAM v BABCOCK (Supplemental Expert) 44 CA4 1717 [See: CCP 2034; Castaneda v Bornstein 36 CA4 1818, T/AT 9/95; Martinez v City 12 CA4 425, T/AT 3/93]



------------



1264 REVIEW DENIED Automatic stay provisions under the federal Bankruptcy law do not apply to tort actions brought by the bankrupt or to appeals in those actions.



SHAH v GLENDALE (Bankruptcy Stay) 44 CA4 1371 [See: 11 USC 362; Shorr v Kind 1 CA4 249]



------------



1265 GovC 68108, which authorizes county governments to declare unpaid furlough days during which trial courts shall not be in session, is not unconstitutional on its face.



SUPERIOR COURT OF MENDOCINO v COUNTY OF MENDOCINO (Unpaid Furlough) 13 C4 45 [See: GovC 68108; Brydonjack v State Bar 208 C 439; Millholen v Riley 211 C 29; Johnson v Superior Court 50 C2 693, In re McKinney 70 C2 8]



------------

--------------------

*(T/AT 7/96)

--------------------

------------



1266 Parents who suffer emotional distress as a result of defendant's negligent misdiagnosis of their child are not direct victims of defendant's negligence and may not recover for negligently inflicted emotional distress.



KLEIN v CHILDREN'S HOSPITAL (Wrong Cancer) 46 CA4 889 [See: Molien v Kaiser 27 C3 916; Huggins v Longs 6 C4 124, T/AT 1/94; Rowland v Christian 69 C2 108; Burgess v Superior Court 2 C4 1064]



------------



1267 REVIEW DENIED Figure skaters practicing together on the same ice do not owe each other a duty of reasonable care; there is a primary assumption of the risk that prevents recovery by one figure skater against another for a negligently inflicted injury.



STATEN v SUPERIOR COURT (Figure Skating A/R) 45 CA4 1628 [See: Knight v Jewett 3 C4 296, T/AT 10/92]



------------



1268 REVIEW DENIED If a release from liability given in advance of an activity is valid and does not violate public policy, the person giving such a release expressly assumes all risks within the scope of the release, regardless of whether those risks are inherent in the activity.



ALLABACH v SANTA CLARA (Pit Pass) 46 CA4 1007 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Tunkl v Regents 60 C2 92; Paralift v Superior Court 23 CA4 748; McAtee v Newhall 169 CA3 1031]



------------



1269 REVIEW DENIED Under the firefighter's rule, there is a primary assumption of the risk that prevents recovery by a nurse's aide against an elderly patient with Alzheimer's Disease who attacked and injured her.



HERRLE v EST OF MARSHALL (Alzheimer's Attack) 45 CA4 1761 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Neighbarger v Irwin 8 C4 532, T/AT 11/94; Marquez v Mainframe 42 CA4 881, T/AT 3/96]



------------



1270 Testimony by an expert, who was of the opinion that if a dentist had taken reasonable precautions, a patient would not have aspirated a crown the dentist was installing, required the trial court to give a conditional res ipsa instruction that the jury might infer that the accident probably would not have occurred without negligence, and if they drew that inference, that they might infer that defendant dentist was negligent.



BLACKWELL v HURST (Aspirated Crown) 46 CA4 939 [See: Brown v Poway 4 C4 820, T/AT 3/93; EvC 646; Seneris v Haas 45 C2 811]



------------



1271 Neither the market share theory nor the alternative liability theory should be applied to wholesalers of ABS pipe that was defective due to the materials used in its manufacture, because ABS products are not fungible, because the defect was a manufacturing defect rather than a design defect, and because plaintiffs have effective remedies against other defendants.



EDWARDS v A.L. LEASE & CO (Recycled Plastic) 46 CA4 1029 [See: Sindell v Abbott 26 C3 588; Summers v Tice 33 C2 80; Greenman v Yuba 59 C2 57]



------------



1272 REVIEW DENIED Raw asbestos fiber used in making insulation is a product; suppliers of defective components used in the manufacture of a finished product and which make the finished product defective may be strictly liable for damage caused by the finished product.



JENKINS v T & N (Raw Fibers) 45 CA4 1224 [See: Lineaweaver v Plant 31 CA4 1409, T/AT 3/95; Hammond v North American 454 NE2 210; Menna v Johns-Manville 585 FS 1178; Wiler v Firestone 95 CA3 621]



------------



1273 A defendant may be liable for damage caused by negligent acts committed during a sudden and unexpected attack of mental illness.



BASHI v WODARZ (Freak-Out) 45 CA4 1314 [See: Cohen v Petty 65 F2 820; Waters v Pacific 55 CA2 789; CivC 41; REST2 283B; Breunig v American 173 NW2 619]



------------



1274 A public entity sued for injury allegedly resulting from a dangerous condition of public property is entitled to summary judgment on the ground of design immunity if it establishes that the injury resulted from the design of an improvement to public property that was approved by a legislative body and could have been approved by a reasonable legislative body, unless plaintiff can show that there are triable issues about whether the entity received notice of the danger after the improvement was installed.



BART v SUPERIOR COURT (Jerky Train) 46 CA4 476 [See: GovC 830.6; Flournoy v State 275 CA2 806; Compton v City 12 CA4 591, T/AT 3/93]



------------



1275 Liability may be imposed on a person who makes a false report of child abuse with knowledge of its falsity, or reckless disregard for the truth.



BEGIER v BEGIER (Custody Battle) 46 CA4 877 [See: Spitler v CII 11 CA4 432, T/AT 2/93; Robbins v Home 32 CA4 671, T/AT 3/95; Stecks v Young 38 CA4 365, T/AT 10/95; PenC 11172; Fenelon v Superior Court 223 CA3d 1476; Fremont v Superior Court 44 CA4 867, T/AT 5/96; Passman v Torkan 34 CA4 607, T/AT 6/95; Hunsucker v Sunnyvale 23 CA4 1498, T/AT 5/94; Bidna v Rosen 19 CA4 27, T/AT 12/93]



------------



1276 REVIEW GRANTED The privilege of neutral reportage has not been adopted in California and, in any event, does not apply to reports of false accusations about persons who are not public figures; standing near a presidential candidate shortly before he was assassinated does not make a person a public figure; a publisher's failure to investigate glaringly improbable statements before reporting on them is circumstantial evidence that it entertained doubts about them and deliberately avoided ascertaining the truth, which satisfies the requirement of "actual malice" and justifies an award of punitive damages.



KHAWAR v GLOBE (RFK Assassination) 46 CA4 1 [See: Stolz v KSFM 30 CA4 195, T/AT 12/94; Denney v Lawrence 22 CA4 927, T/AT 3/94; Gilman v McClatchy 111 C 606; Gertz v Robert Welch 418 US 323; St Amant v Thompson 390 US 727]



------------



1277 REVIEW DENIED An action for promissory fraud requires pleading and proof that when defendant made promises, it had no intention of keeping them; a fraudulent representation that induced a plaintiff to enter into and begin performing a contract was not a proximate cause of damage resulting from breach of the contract by defendant, so plaintiff's appropriate remedy was an action for breach of contract rather than an action in tort.



SERVICE BY MEDALLION v CLOROX (Non Union Janitor) 44 CA4 1807 [See: Croeni v Goldstein 21 CA4 754, T/AT 3/94; Lazar v Superior Court 12 C4 631, T/AT 2/96]



------------



1278 If, as part of a fraud cause of action for the invasion of a single primary right, plaintiff alleges that defendant made several fraudulent statements, a jury may find for plaintiff if the necessary three fourths majority agrees that one of the alleged statements was fraudulently made, even though the jurors disagree about which of the alleged statements it was.



STONER v WILLIAMS (Fraudulent Adoption) 46 CA4 986 [See: Handel v USF&G 192 CA3 684; People v Gordon 165 CA3 839; People v Davis 8 CA4 28; Bay Cities v Lawyers' Mutual 5 C4 854, T/AT 10/93]



------------



1279 An appeal that resulted in the reduction of a judgment against defendant from $2 million to $1 million does not entitle defendant to attorney fees under a contract granting them to the prevailing party.



SNYDER v MARCUS & MILLICHAP (Partial Victory) 46 CA4 1099 [See: Pirkig v Dennis 215 CA3 1560; Resolution Trust v Midwest Fed 36 F3 785]



------------



1280 REVIEW DENIED Consumer fraud statutes do not apply to advertising or communications by the Regents of the University of California.



FAVISH v REGENTS (Misleading Advertising) 46 CA4 49 [See: GovC 17200 etseq; Scharf v Regents 234 CA3 1393]



------------



1281 A cross claim may be the subject of a subsequent action for malicious prosecution; in a malicious prosecution action against an attorney, the question of whether the attorney had probable cause to assert a claim is a question of law to be determined by applying an objective standard; a defendant's attorney may have probable cause to assert a cross claim against another defendant for equitable indemnity even though s/he believes and asserts that the plaintiff's injury did not result from negligence by any defendant.



BIXLER v GOULDING (Malicious Cross Complaint) 45 CA4 1179 [See: Crowley v Katleman 8 C4 666, T/AT 12/94; Sheldon Appel v Albert & Oliker 47 C3 863; Coleman v Gulf 41 C3 782]



------------



1282 There is uncertainty about whether an attorney sued for malpractice can assert a right of equitable indemnity against an attorney who subsequently represented the client and whose negligence allegedly contributed to the client's damage, so an attorney who asserts such a claim had probable cause and is not liable for maliciously prosecuting the claim.



COPENBARGER v INTERNATIONAL INS (Daisy Chain) 46 CA4 961 [See: American Motorcycle v Superior Court 20 C3 578; Goldfisher v Superior Court 133 CA3 12; Pollack v Lytle 120 CA3 931; Parker v Morton 117 CA3 751]



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1283 Exculpatory language inserted by a product seller into an invoice it sent a buyer did not affect the buyer's right to equitable indemnity from the seller for liability imposed on the buyer as a result of a defect in the subject product.



TRANSWESTERN v MONSANTO (Unilateral Limitation) 46 CA4 502 [See: UCC 2-207; Diamond v Krack 794 F2 1440; Step-Saver v Wyse 939 F2 91]



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1284 REVIEW DENIED A judgment for the doctor in an action by a patient for medical malpractice collaterally estops a hospital from seeking equitable indemnity from the doctor for liability to the patient subsequently imposed on the hospital.



CHILDREN'S HOSPITAL v SEDGWICK (No Indemnity) 45 CA4 1780 [See: Western Steamship v San Pedro Penin Hosp 8 C4 100, T/AT 9/94]



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1285 REVIEW DENIED In a continuing nuisance action for ground contamination, plaintiff may not recover damages for reduction in the value of realty resulting from a stigma attaching to the land as the result of its having been contaminated.



SANTA FE v ARCO (Leaky Tank) 46 CA4 967 [See: Spaulding v Cameron 38 C2 265]



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1286 The right to recover economic damages for violation of plaintiff's due process rights exists only if plaintiff has no other remedy; a plaintiff claiming to have been deprived of personalty without due process may assert a claim for conversion and, therefore, may not assert a claim for economic damages resulting from violation of due process rights.



BONNER v CITY (Homeless Rights) 45 CA4 1465 [See: Bonner v City, T/AT 9/94; Gates v Superior Court 32 CA4 481, T/AT 3/95]



------------



1287 REVIEW DENIED In the absence of exigent circumstances, the Fourth Amendment to the US Constitution prohibits warrantless entry into a private home, so animal control officers who entered a home without a warrant for the purpose of impounding a dog that they had seen running at large in violation of leash laws may be liable for violation of the federal Civil Rights Act, trespass, conversion, negligence, invasion of privacy, intentional and negligent infliction of emotional distress, and violation of the California Constitution's prohibition against unreasonable searches and seizures.



CONWAY v PASADENA HUMANE SOCIETY (Dog Arrest) 45 CA4 163 [See: US Const, AmIV; 42 USC 1983; Payton v New York 445 US 573]



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1288 REVIEW DENIED A plaintiff suing for inverse condemnation is entitled to compensation for business good will that was lost as a result of the forced relocation of plaintiff's business.



JONG SEAU CHHOUR v COMMUNITY REDEVELOPMENT (Good Will) 46 CA4 273 [See: CCP 1263.510; People v Muller 36 C3 263; Community Development v Asaro 212 CA3 1297]



------------



1289 A client discovered actual injury, and the statute of limitations began running on a claim for accountant malpractice based on negligent advice about the tax benefit plaintiff would receive if it donated realty when, after plaintiff made the recommended donation, the accountant advised plaintiff that the advice was incorrect and that plaintiff would receive a smaller tax benefit.



VAN DYKE v DUNKER (Donated Realty) 46 CA4 446 [See: Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; International v Feddersen 9 C4 606, T/AT 4/95; Adams v Paul 11 C4 583, T/AT 12/94]



------------



1290 The statute of limitations on medical malpractice at CCP 340.5 -- which starts the period of limitations running on an adult's claim when the injury occurs, but on a child's claim when the wrongful act occurs -- violates the right to equal protection; the period of limitations on a child's action for medical malpractice begins to run when the injury occurs.



PHOTIAS v DOERFLER (Undiscovered Sterility) 45 CA4 1014 [See: CCP 340.5; Torres v County 209 CA3 325]



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1291 REVIEW GRANTED The statutory period of limitations on a claim for berylliosis resulting from exposure to beryllium begins to run when a diagnosis of berylliosis is made; but the cause of action accrues when exposure first occurs, so Proposition 51 does not apply if the first exposure occurred before June 4, 1986.



POLENSKY v KYOCERA (Beryllium) 45 CA4 1649 [See: CCP 340; Anderson v So Pac 231 CA2 233; Jolly v Eli Lilly 44 C3 1103; Peterson v Owens-Corning 43 CA4 1028, T/AT 4/96; Buttram v Owens-Corning T/AT 4/95; Coughlin v Owens-Illinois T/AT 3/94]



------------



1292 REVIEW GRANTED A city's liability for improper design and maintenance of a storm drain that continuously damaged claimant's property over a period of 10 years until it became worthless triggered the city's insurance coverage throughout the period during which damage occurred for which the City was liable, and all insurers whose policies were in force during any portion of that period owed the city a defense and indemnity.



STONEWALL v CITY OF PALOS VERDES (Storm Drain) 46 CA4 1810 [See: Montrose v Admiral 10 C4 645, T/AT 8/95]



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1293 REVIEW GRANTED Investigation expenses that an insured reasonably and necessarily incurred in an effort to limit liability were costs of defense and recoverable from an insurer that had an obligation to defend but not to indemnify.



AEROJET v TRANSPORT INDEM (TCE) 45 CA4 1192 [See: AIU v Superior Court 51 C3 807; Gray v Zurich 65 C2 263]



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1294 DEPUBLISHED To satisfy policy language creating an exception to a pollution exclusion for contamination that is "sudden and accidental," the contamination must be abrupt and unexpected.



SERVICE CONTROL v LIBERTY MUTUAL (Sudden and Accidental) 46 CA4 1047 [See: Shell v Winterthur 12 CA4 715, T/AT 3/93]



------------



1295 DEPUBLISHED Language of a homeowner's policy earthquake rider creating a deductible of "5% of the amount of insurance that applies to the destroyed or damaged property" referred to 5% of the covered loss, not 5% of the policy limit.



WIXSON v AMICA (Earthquake Deductible) 46 CA4 790 [See: Bank of the West v Superior Court 2 C4 1254, T/AT 9/92]



------------



1296 REVIEW DENIED Under CCP 904.1, discovery sanctions in excess of $5,000 are immediately appealable.



RAIL-TRANSPORT EMPLOYEES v UNION PACIFIC (Discovery Sanctions) 46 CA4 469 [See: CCP 2023, 2025, 904.1; Rao v Campo 233 CA3 1557; Greene v Amante 3 CA4 684]



------------



1297 REVIEW GRANTED If an attorney hires a consultant who formerly consulted with the attorney's adversary and who possessed confidential information material to the pending litigation, there is a presumption that the consultant has disclosed such information, justifying disqualification of the attorney; but if the presumption is rebutted, disqualification is not required.



TOYOTA v SUPERIOR COURT (Fuel System Consultant) 46 CA4 778 [See: Shadow v Superior Court 24 CA4 1067, T/AT 6/94; Hiott v Superior Court 16 CA4 712, T/AT 8/93]



------------



1298 If a party rejects an offer of compromise and then receives a judgment less favorable at trial, the trial court has discretion to award attorney fees to the other party; but if after judicial arbitration the party who rejected the offer requests trial de novo and it results in a judgment less favorable than the offer of compromise and the arbitration award, the trial court is required to award attorney fees to the other party.



BHULLAR v TAYYAB (May vs Shall) 46 CA4 582 [See: CCP 998, 1021.1, 1141.21; Morin v ABA 195 CA3 200]



------------



1299 REVIEW GRANTED The appropriate means of judicially reviewing a private university's tenure decision is administrative mandamus, and a trial court should sustain a demurrer to a civil action for wrongful termination based on the university's failure to grant tenure.



POMONA COLLEGE v SUPERIOR COURT (Tenure Decision) 45 CA4 1716 [See: CCP 1094.5; Delta v Banasky 27 CA4 1598; Wallin v Vienna Sausage 156 CA3 1051; Bray v International 155 CA3 608; Anton v San Antonio 19 C3 802]



------------



1300 DEPUBLISHED A defendant who inserted boiler plate exhaustion-of-administrative-remedies language as one of 17 affirmative defenses in an answer but did nothing to pursue the issue during a year of extensive discovery on all other issues thereby waived the right to administrative review and was not entitled to summary judgment on the eve of trial on the ground that plaintiff failed to exhaust administrative remedies.



HWB v NISSAN (Administrative Remedies) 45 CA4 1663 [See: Waller v Truck 11 C4 1, T/AT 10/95]



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1301 REVIEW DENIED Although a fellow employee might be liable under FEHA for sexual harassment, FEHA does not impose liability on a fellow employee for employment discrimination.



JANKEN v GM HUGHES (Supervisor's Discrimination) 46 CA4 55 [See: GovC 12900 etseq; Mogilefsky v Superior Court 20 CA4 1409, T/AT 2/94; Page v Superior Court 31 CA4 1206, T/AT 2/95; Matthews v Superior Court 34 CA4 598, T/AT 6/95]



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1302 REVIEW GRANTED A hospital organized under the Nonprofit Public Benefit Corporation Law, rather than the Nonprofit Religious Corporation Law, is not protected by an FEHA exception for religious organizations, even though it is operated by and according to the precepts of the Catholic church.



MCKEON v MERCY HEALTHCARE (Public Benefit Corp) 45 CA4 1638 [See: GovC 12900 etseq; Kelly v Methodist Hosp 44 CA4 719, T/AT 5/96]



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1303 An employee who, upon leaving employment and in return for a severance package worth $8,000, executed a document releasing his employer from liability was bound by it and was precluded from suing his employer for wrongful termination and employment discrimination.



SKRBINA v FLEMING (Severance Package) 45 CA4 1353 [See: CivC 1541; Winet v Price 4 CA4 1159]



------------



1304 An employee was bound by an arbitration clause in the written employment agreement, and it precluded her from suing her employer for discrimination on the basis of gender.



BROOKWOOD v BANK OF AMERICA (Unread Agreement) 45 CA4 1667 [See: Lynch v Cruttenden 18 CA4 802, T/AT 11/93; CCP 1281]



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--------------------

*(T/AT 8/96)

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1305 REVIEW DENIED Negligence by a police officer in allowing a felon being transported in a police car to escape from custody is not negligence in the operation of a motor vehicle and is subject to immunity under GovC 845.8.



CHAMPION v COUNTY (Escaped Felon) 47 CA4 972 [See: VehC 17001; GovC 845.8; Thomas v City 9 C4 1154, T/AT 6/95; Ladd v County 12 C4 913, T/AT 4/96]



------------



1306 Police officers acted reasonably in shooting and killing a man who approached them wielding a knife and saying that if they didn't kill him he would kill them and the officers were immune from liability for the shooting.



MARTINEZ v COUNTY (Knife Wielder) 47 CA4 334 [See: 42 USC 1983; PenC 196; Hunter v Bryant 502 US 224; Smith v Freland 954 F2 343; Graham v Connor 490 US 386; Gilmore v Superior Court 230 CA3 416; Plakas v Drinski 19 F3 1143]



------------



1307 A federal court's determination that a police officer's conduct was reasonable and therefore subject to qualified immunity from liability under the federal Civil Rights Act does not have the effect of res judicata or collateral estoppel in a California negligence action arising from the same conduct.



LUCAS v COUNTY (Untreated Prisoner) 47 CA4 277 [See: 42 USC 1983; GovC 845.6; Branson v Sun-Diamond 24 CA4 327, T/AT 5/94; People v Santamaria 8 C4 903; Farmer v Brennan 114 SCt 1970]



------------



1308 REVIEW DENIED Fear of future harm is not damage sufficient to support a claim for nuisance or inverse condemnation.



JORDAN v CITY (War of the Willows) 46 CA4 1245 [See: Locklin v City 7 C4 327, T/AT 4/94; Koll-Irvine v County 24 CA4 1036, T/AT 6/94; County v Carlstrom 196 CA2 485]



------------



1309 REVIEW GRANTED Unless the state shows compliance with the requirements of 23 USC 152, it is not protected against discovery of traffic and safety reports.



DEPARTMENT v SUPERIOR COURT (State Discovery) 47 CA4 852 [See: 23 USC 409, 152; Louisiana-Pacific v Koppers 32 CA4 599, T/AT 3/95]



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1310 REVIEW DENIED In an action for defamatory statements concerning an issue of public concern, the plaintiff has the burden of proving that the statements were false.



NIZAM-ALDINE v CITY (Defamed Surveyor) 47 CA4 364 [See: Philadelphia Newspapers v Hepps 475 US 767; Stolz v KSFM 30 CA4 195, T/AT 12/94]



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1311 REVIEW DENIED Statements made to others seeking support for a contemplated complaint to the state Attorney General are privileged, and an action based on such statements is subject to a special motion to strike under the SLAPP statute.



DOVE v ROSENFELD (Carnival of the Animals) 47 CA4 777 [See: CivC 47b; Albertson v Raboff 46 C2 375; Lerette v Dean Witter 60 CA3 573; Ascherman v Natanson 23 CA3 861; CCP 425.16; Ludwig v Superior Court 37 CA4 8, T/AT 9/95; Church v Wollersheim 42 CA4 628, T/AT 3/96]



------------



1312 For purposes of the workers' compensation statute, a newspaper carrier was an employee rather than an independent contractor.



GONZALEZ v WCAB (Newspaper Carrier) 46 CA4 1584 [See: Borello v Department 48 C3 341; LabC 3600 etseq]



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1313 A carrier's duty to defend is owed only to its insured, and, absent an assignment of the insured's right, is irrelevant to a claim by a third person against the carrier.



MILLER v AMERICAN HOME (Recreational Skier) 47 CA4 844 [See: Gray v Zurich 65 C2 263; InsC 11580; Wright v Fireman's 11 CA4 998, T/AT 2/93; Jane D v Ordinary 32 CA4 643, T/AT 3/95]



------------



1314 The "captain of the ship" doctrine does not apply to make a surgeon liable for the negligence of a person who is not a medical professional or for negligence occurring outside the operating theater and prior to surgery.



THOMAS v INTERMEDICS (Captain of the Ship) 47 CA4 957 [See: Armstrong v Wallace 8 CA2 429; Ales v Ryan 8 C2 82; Ybarra v Spangard 25 C2 486; Hallinan v Prindle 17 CA2 656; Truhitte v French Hospital 128 CA3 332]



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1315 REVIEW DENIED Only an employer can be liable for wrongful termination, so a non-employer cannot be liable for civil conspiracy to wrongfully terminate an employee.



WEINBAUM v GOLDFARB (Conspiracy to Terminate) 46 CA4 1310 [See: Applied v Litton 7 C4 503, T/AT 5/94]



------------



1316 An attorney's negligence in failing diligently to prosecute a client's case resulted in actual injury -- and the statute of limitations began to run on the attorney malpractice claim -- when the client lost the opportunity of opposing a motion to dismiss the case, and a question of fact exists as to when the opportunity was lost.



MOSS v STOCKDALE (Failure to Prosecute) 47 CA4 494 [See: CCP 340.6, 583.360, 583.330; Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; Finlayson v Sanbrook 10 CA4 1436, T/AT 1/93; Adams v Paul 11 C4 583, T/AT 12/95; Brown v Hartford 24 CA4 247, T/AT 5/94]



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1317 REVIEW DENIED The statute of limitations on attorney malpractice is unconditionally tolled while the attorney continues to represent the client in connection with the same subject matter as the matter that is the basis of the malpractice claim.



KULESA v CASTLEBERRY (Seat Belt Malpractice) 47 CA4 103 [See: CCP 340.6; Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; Finlayson v Sanbrook 10 CA4 1436, T/AT 1/93; Adams v Paul 11 C4 583, T/AT 12/95]



------------



1318 REVIEW DENIED CCP 473 -- which requires the court to vacate any default judgment or dismissal resulting from attorney mistake, inadvertence, surprise, or neglect -- does not apply to a dismissal based on the statute of limitations.



CASTRO v SACRAMENTO (No Relief) 47 CA4 927 [See: Hanooka v Pivko 22 CA4 1553, T/AT 4/95; Williams v LA USD 23 CA4 84, T/AT 4/94]



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1319 An action against a corporate director for breach of fiduciary duty existed at common law and so is not a "liability created by law" for purposes of the special statute of limitations set forth in CCP 359.



BRIANO v RUBIO (Director's Breach) 46 CA4 1167 [See: CCP 359; CorpC 309; Jackson v Cedars-Sinai 220 CA3 1315; Coombes v Getz 217 C 320]



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1320 REVIEW DENIED The four year period of limitations on an action against an architect or builder for injuries resulting from a patent defect in an improvement to realty begins to run upon substantial completion of the improvement, regardless of when the cause of action arises.



TOMKO v SUPERIOR COURT (Patent Defect) 46 CA4 1326 [See: CCP 337.1; Hahn v Superior Court 108 CA3 567]



------------



1321 The use of a computer to obtain and make unauthorized use of telephone access codes may result in liability for trespass to chattel and fraud.



THRIFTY-TEL v BEZENEK (Computer Hackers) 46 CA4 1559 [See: CivC 1714.1; Moore v Regents 51 C3 120; Geernaert v Mitchell 31 CA4 601, T/AT 2/95; Shaffer v Debbas 17 CA4 33, T/AT 9/93; Adkins v Model 92 CA 575; Olschewski v Hudson 87 CA 282; Zaslow v Kroenert 29 C2 541]



------------



1322 An action for promissory fraud requires allegation and proof that when the defendant made a promise, s/he had no intention of keeping it; terminating an employee for refusing to discriminate against others on the basis of their race or ethnicity may lead to liability to the employee under the Unruh Civil Rights Act.



MAGPALI v FARMERS (Disappointed Agent) 47 CA4 1024 [See: Service by Medallion v Clorox 44 CA4 1807, T/AT 7/96; Lazar v Superior Court 12 C4 631, T/AT 2/96; CivC 51 etseq]



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1323 REVIEW DENIED The Department of Fair Employment and Housing (DFEH) does not have jurisdiction to determine whether insurance underwriting decisions that discriminate on the basis of age violate the Unruh Civil Rights Act.



WILSON v FEHC (Underwriting Discrimination) 46 CA4 1213 [See: InsC 1851 - 1861.16; CivC 51 - 53; GovC 12900 etseq]



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1324 The Fair Employment and Housing Act (FEHA) does not apply to sexual harassment claims made by an employee of a California-based company who is not a California resident, whose employment duties were performed outside California, and whose injuries are based on behavior occurring outside California.



CAMPBELL v ARCO MARINE (Nautical Harassment) 42 CA4 1850 [See: GovC 12900 etseq; EEOC v Arabian 499 US 244; Burnside v Simpson 832 P2 537]



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1325 Although his acts were found to have been performed in an ostensibly joking manner, with no intent to cause embarrassment, shame, or injury, or to coerce, or vent anger, and not while court was in session or while he was on the bench, a trial judge was publicly censured for making sexually suggestive remarks to female staff members, using crude and demeaning names and an ethnic slur to describe another staff member, referring to a fellow jurist's physical attributes in a demeaning manner, and mailing a sexually suggestive postcard to a staff member addressed to her at the courthouse.



IN RE GORDON (Censured Judge) 13 C4 472 [See: CA Const VI,18,(c)(2)]



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1326 REVIEW DENIED An attorney who, with knowledge that funds are subject to a lien for medical services, disburses the funds to a client is personally liable to the holder of the lien.



KAISER v AGUILUZ (Kaiser Lien) 47 CA4 302 [See: Miller v Rau 216 CA2 68; Brian v Christensen 35 CA3 377; City v Sweet 12 C4 105, T/AT 1/96]



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1327 An employer's liability policy designating a corporation as the sole named insured does not automatically extend "named insured" status to the corporation's officers, directors and employees.



REPUBLIC v SCHOFIELD (Uninsured Officers) 47 CA4 220 [See: Nelson v US Fire 259 CA2 248]



------------



1328 DEPUBLISHED Under a CGL policy insuring a contractor against liability that "results from" a subcontractor's work, the carrier was obligated to defend an action brought by a subcontractor's employee who was injured while not actually working, but while fetching his tools for work.



CONTINENTAL v ST PAUL (Fetching Tools) 47 CA4 291 [See: Montrose v Superior Court 6 C4 287, T/AT 1/94; Bank of the West v Superior Court 2 C4 1254, T/AT 9/92]



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1329 Under a homeowner's policy covering liability resulting from "... exposure to conditions, which results, during the policy period, in ... loss of use of tangible property," a carrier was obligated to defend an insured against an adjoining property owner's claim for loss of use resulting from an encroaching structure, even though the encroaching structure was built before the policy went into effect.



BORG v TRANSAMERICA (Old Encroachment) 47 CA4 448 [See: Montrose v Admiral 10 C4 645 T/AT 8/95; Vann v Travelers 39 CA4 1610, T/AT 12/95]



------------



1330 REVIEW DENIED Under a casualty policy that required a deductible to be applied to each loss separately occurring, a series of thefts committed by one individual from an insured were separate occurrences, to each of which the deductible should be separately applied.



BHD v NIPPON INSURANCE (Separate Thefts) 46 CA4 1137 [See: AIU v Superior Court 51 C3 807; Eott v Storebrand Ins 45 CA4 565, T/AT 6/96]



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1331 A tenant's insurer that loses a suit it brought as a tenant's subrogee against a landlord may be liable for attorney fees under an agreement in the lease; where available, attorney fees may be recovered as costs and do not have to be pleaded as an item of damage in the complaint.



ALLSTATE v LOO (Subrogee Fees) 46 CA4 794 [See: CCP 1033.5; Russell v Trans Pacific 19 CA4 1717; Lerner v Ward 13 CA4 155, T/AT 4/93; Xuereb v Marcus 3 CA4 1338]



------------



1332 A written agreement giving an arbitrator the power to grant "any remedy or relief to which a party is entitled under California law," gave the arbitrator the power to award a $75,000 attorney fee as a sanction against the plaintiff for maintaining a frivolous lawsuit.



DAVID v ABERGEL (Arbitration Sanctions) 46 CA4 1281 [See: Moncharsh v Heily 3 C4 1; Advanced v Intel 9 C4 362]



------------



1333 An arbitration agreement between a plaintiff-patient and a defendant-health care provider does not bind a cross-complainant who was not a party to the agreement and who now seeks equitable indemnity from the health care provider.



COUNTY OF CONTRA COSTA v KAISER (Unagreed Arbitration) 47 CA4 237 [See: Western Steamship v San Pedro Pen Hosp 8 C4 100, T/AT 9/94; Marsch v Williams 23 CA4 250, T/AT 4/94]



------------



1334 REVIEW GRANTED An employee suing a third party for job-related injuries, who requests trial de novo after judicial arbitration and receives a less favorable judgment, can not deduct costs and fees of the litigation from the workers' compensation lien held by his/her employer or its carrier.



PHELPS v STOSTAD (WC Lien) 46 CA4 1629 [See: CCP 1141.21; LabC 3856; Crampton v Takegoshi 17 CA4 308, T/AT 9/93]



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1335 A trial court should not order discovery of notes or recorded statements taken by counsel during interviews of potential witnesses, or of a list of witnesses so interviewed, because this material constitutes attorney work product; but the court may order discovery of a list of potential witnesses who turned over to counsel statements that they prepared themselves.



NACHT & LEWIS v SUPERIOR COURT (Work Product) 47 CA4 214 [See: CCP 2018; City v Superior Court 64 CA3 65; People v Boehm 270 CA2 13; Rodriguez v McDonnell Douglas 87 CA3 626]



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1336 In an insurance coverage dispute, since an excess liability carrier's obligation to indemnify may depend on whether claims against the insured were fully satisfied by other insurers, the excess carrier is entitled to discover the amounts of settlements made by the insured with other carriers.



HOME v SUPERIOR COURT (Settlement Discovery) 46 CA4 1286 [See: City v Twin City 37 CA4 1072, T/AT 9/95; Topa v Fireman's 39 CA4 1331, T/AT 12/95]



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1337 The Hague Service Convention is satisfied by personal service in the United Kingdom by a person competent to serve process there.



BALCOM v HILLER (English Service) 46 CA4 1758 [See: Volkswagenwerk v Schlunk 486 US 694; App FRCP 4, 28 USC; Service of Process Abroad: A Nuts and Bolt Guide 122 FRD 63]



------------



1338 REVIEW DENIED If, for the same wrong, a plaintiff seeks two kinds of damages, one of which, as a matter of law, is not available, but the other of which is, the court can not grant summary adjudication of the claim for the damages that are not available, because doing so would not dispose of an entire cause of action.



DeCASTRO v SUPERIOR COURT (Entire C/A) 47 CA4 410 [See: CCP 437c; Lilienthal v Superior Court 12 CA4 1848]



------------



1339 So long as a settlement was entered prior to the rendering of judgment, a settling party is entitled to a good-faith settlement hearing under CCP 887.6, even if summary judgment is granted prior to the scheduled hearing.



ANDRUSS v SUPERIOR COURT (Settlement Hearing) 46 CA4 1276 [See: CCP 877.6; Price Pfister v William Lyon 14 CA4 1643, T/AT 6/93]



------------



1340 An appellate court can not base a decision on a point not raised by the parties unless the parties are given an opportunity for briefing.



CALIFORNIA CAS v SUPERIOR COURT (Uninformed Opinion) 46 CA4 1145 [See: Adoption of Alexander S 44 C3 857; GovC 68081]



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1341 REVIEW GRANTED Selling cigarettes to minors is an unfair business practice, and a private citizen can sue for its violation.



STOP YOUTH ADDICTION v LUCKY STORES (No Smoking) 46 CA4 1371 [See: B&PC 17200; PenC 308; CU v Fisher 208 CA3 1433]



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--------------------

*(T/AT 9/96)

--------------------

------------



1342 Assignment of a debt to a collection agency creates a fiduciary relationship, imposing on the collection agency a duty to the assignor of acting in the highest good faith.



CROSS v BONDED ADJUSTMENT (Collection Agency) 48 CA4 266 [See: Elam v Arzaga 122 CA 742; Harrison v Adams 20 C2 646; Rest(2) Agency 14N, com(a)]



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1343 DEPUBLISHED A real estate appraiser who knows that the appraisal report will be used by a potential lender, but who does not know the lender's identity, owes a duty to the potential lender to avoid negligent misrepresentation, but does not owe the potential lender a duty to avoid general negligence, and is not liable to the potential lender for breach of contract on a third party beneficiary theory.



SOROSKY v HAMILL (Negligent Appraisal) 48 CA4 1590 [See: Bily v Arthur Young 3 C4 370, T/AT 11/92; Soderberg v McKinney 44 CA4 1760, T/AT 6/96; Auto Equity v Superior Court 57 C2 450]



------------



1344 An industry-wide requirement that customers sign a document releasing suppliers and repairers of ski equipment from potential liability for negligence and breach of warranty is not an unfair business practice.



OLSEN v BREEZE (Ski Release) 48 CA4 608 [See: Henningson v Bloomfield Motors 161 A2 69; CivC 1750 etseq; B&PC 17200 etseq; Westlye v Look 17 CA4 1715, T/AT 11/93; Randas v YMCA 17 CA4 158, T/AT 9/93; Allabach v Santa Clara 46 CA4 1007, T/AT 7/96]



------------



1345 An employee of a retail store was not acting in the scope of employment while driving to purchase cookies during a break.



BAILEY v FILCO (Cookie Run) 48 CA4 1552 [See: Lazar v Thermal 148 CA3 458; Perez v VanGroningen 41 C3 962; DeMirjian v Ideal 129 CA2 758; Rodgers v Kemper 50 CA3 608]



------------



1346 The California Public Utilities Act pre-empts California courts from hearing claims for property damage resulting from electric and magnetic fields (EMFs) generated by power lines.



SDG&E v SUPERIOR COURT (EMF's) 13 C4 893 [See: PUC 1759, 2106; Waters v PacTel 12 C3 1; Potter v Firestone 6 C4 965, T/AT 2/94; Jordan v City 46 CA4 1245, T/AT 8/96; County v Carlstrom 196 CA2 485]



------------



1347 REVIEW GRANTED / TRANSF TO CT OF APP Workers' compensation is the exclusive remedy for employment discrimination on the basis of physical disability resulting from job related injury.



CAMMACK v GTE (Injury Discrimination) 48 CA4 207 [See: LabC 132a; GovC 12993(a); Usher v American 20 CA4 1520, T/AT 2/94; Angell v Peterson 21 CA4 981, T/AT 3/94; Langridge v Oakland USD 25 CA4 664, T/AT 7/94; City of Moorpark v Superior Court T/AT 4/96]



------------



1348 An action under FEHA may be brought against an individual who was not named in the caption of a complaint to the DFEH, so long as s/he was named in the body of the complaint; but such an action may not be brought against an individual who was named neither in the body nor in the caption of a complaint to DFEH.



COLE v ANTELOPE VALLEY UHSD (Unnamed Defendant) 47 CA4 1505 [See: GovC 12900 etseq; Valdez v City 231 CA3 1043; Martin v Fisher 11 CA4 118, T/AT 2/93; Saavedra v Orange County 11 CA4 824, T/AT 2/93]



------------



1349 REVIEW GRANTED In an action for age discrimination under FEHA, the trial court may fix attorney fees to be awarded to the prevailing employee without being restricted to the rate ordinarily charged by an attorney at any given point in time, or a reduced rate for an attorney not licensed to practice in this state, but may not award expert witness fees as costs.



DAVIS v KGO-TV (Fees & Costs) 47 CA4 1158 [See: GovC 12965; CCP 1033.5; Melnyk v Robledo 64 CA3 618; Montgomery v Bio-Med 183 CA3 1292]



------------



1350 REVIEW DENIED Making a statement to a newspaper reporter is not necessarily an exercise of the constitutional right of petition or freedom of expression in connection with a public issue, and not necessarily entitled to protection under the SLAPP statute.



XI ZHAO v WONG (SLAPP Murder) 48 CA4 1114 [See: Dixon v Superior Court 30 CA4 733, T/AT 1/95; Wilcox v SuperCt 27 CA4 809, T/AT 9/94; Ludwig v Superior Court 37 CA4 8, T/AT 9/95; Church v Wollersheim 42 CA4 628, T/AT 3/96; Dove v Rosenfeld 47 CA4 777, T/AT 8/96]



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1351 WITHDRAWN An action for equitable indemnity by one insurance carrier against others who insured for the same risk is not based on an instrument in writing and is subject to the two year statute of limitations.



CENTURY v SUPERIOR COURT (No Privity) 47 CA4 1721 [See: CCP 337, 339; Liberty v Colonial 8 CA3 427]



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1352 Even though the plaintiff always remembered incidents of childhood sexual abuse, the statute of limitations on an action for mental illness resulting from the abuse is tolled until the plaintiff discovers or reasonably should discover a connection between the illness and the sexual abuse.



SELLERY v CRESSEY (Dissociation) 48 CA4 538 [See: CCP 340.1; Evans v Eckelman 216 CA3 1609; Marsha v Gardner 231 CA3 265; Lent v Doe 40 CA4 1177, T/AT 1/96]



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1353 In an action by an adult for childhood sexual abuse, the certificate of merit required by statute must be filed within the applicable period of limitations for bringing the action.



DOYLE v FENSTER (Certificate of Merit) 47 CA4 1701 [See: CCP 340.1; Reynolds v Superior Court 25 CA4 222, T/AT 6/94; Lent v Doe 40 CA4 1177, T/AT 1/96]



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1354 REVIEW DENIED For purposes of "doe" pleading, a plaintiff who knows the identity of a particular person, but lacks subjective knowledge of that person's connection with plaintiff's case or injuries, is "ignorant" of the defendant's identity, regardless of whether the plaintiff could have had such knowledge or failed to exercise diligence in obtaining it.



GMC v SUPERIOR COURT (Seat Belt Doe) 48 CA4 580 [See: CCP 474; Optical v Superior Court 228 CA3 776; Wallis v So Pac 61 CA3 782; Oakes v McCarthy 267 CA2 231; Parker v McKee 3 CA4 512; Garrett v Crown 259 CA2 647]



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1355 Communications with a public entity do not substantially comply with claim requirements of the GovC unless they give notice of the intention to present a claim as required by the GovC and of the intention to litigate if the claim is not resolved satisfactorily.



SCHAEFER DIXON v SANTA ANA WATERSHED (Insufficient Threat) 48 CA4 524 [See: Phillips v Desert Hospital 49 C3 699; Foster v McFadden 30 CA3 943; Green v State Center 34 CA4 1348, T/AT 6/95]



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1356 REVIEW DENIED A "value protection" clause in a property insurance policy created an ambiguity that could lead the reasonable insured to believe that s/he was covered in excess of the stated policy limit; an insurer may be vicariously liable for its agent's negligence in failing to obtain the coverage requested by an insured or to sufficiently inform the insured of the coverage that was obtained; an insurer owes its insured a fiduciary duty to act in the utmost good faith.



DESAI v FARMERS INS (Replacement Cost) 47 CA4 1011 [See: Free v Republic 8 CA4 1726. T/AT 11/92; Kurtz v Insurance Communicators 12 CA4 1249, T/AT 4/93]



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1357 A malpractice policy did not cover an attorney's liability for negligence or abuse of process in attempting to collect a fee from a client.



TANA v PROFESSIONALS PROTOTYPE INSURANCE (Fee Dispute) 47 CA4 1612 [See: Chamberlain v Allstate 931 F2 1361; La Jolla B&T v Industrial 9 C4 27, T/AT 1/95]



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1358 A bicycle is not a motor vehicle, so a collision between a bicycle and a pedestrian does not trigger the uninsured motorist coverage in the pedestrian's auto liability policy.



CHONG v CALIFORNIA STATE AUTOMOBILE ASSOCIATION (Uninsured Bicyclist) 48 CA4 285 [See: Bay Cities v Lawyers' Mutual 5 C4 854, T/AT 10/93; AIU v Superior Court 51 C3 807]



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1359 REVIEW DENIED Coverage under a CGL policy was not triggered by an action brought, after the policy expired, for ground contamination that began before the policy went into effect, on land that the insured acquired after the policy expired.



LABEL v TRANSAMERICA (Contamination Trigger) 48 CA4 1188 [See: Cooper v Transcontinental 31 CA4 1094, T/AT 2/95; Montrose v Admiral 10 C4 645, T/AT 8/95]



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1360 REVIEW DENIED When a Cumis counsel fee dispute is accompanied by claims of fraud and malpractice, a trial court may be justified in refusing to compel arbitration and in letting the matter be decided in court.



FIREMAN'S FUND v YOUNESI (Cumis Fraud) 48 CA4 451 [See: SDFCU v Cumis 162 CA3 358; CivC 2860; Caiafa v State Farm 15 CA4800, T/AT 7/93]



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1361 In an insurance bad faith action based on the carrier's failure to settle within policy limits, loss reserves and reinsurance documents may be sufficiently relevant to be discoverable, and should not be protected against discovery without a proper in camera review by the trial court.



LIPTON v SUPERIOR COURT (Reserve Discovery) 48 CA4 1599 [See: CCP 2017; Fireman's v Superior Court 233 CA3 1138]



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1362 The fact that a non-resident of California is licensed to practice law in California is not sufficient contact with the state to permit the exercise by California courts of jurisdiction over the non-resident.



CREA v BUSBY (Non-resident Attorney) 48 CA4 509 [See: Cornelison v Chaney 16 C3 143; Internat Shoe v Washington 326 US 310]



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1363 A trial court did not abuse its discretion in consolidating six dalkon shield products liability cases.



TODD-STENBERG v DALKON SHIELD CLAIMANTS TRUST (Dalkon Shield) 48 CA4 976 [See: CCP 1048; McGhan v Superior Court 11 CA4 804, T/AT 2/93]



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1364 If a contract provides for attorney fees to the prevailing party in litigation, the trial court has jurisdiction to award, as part of costs on appeal, attorney fees incurred in successfully opposing an appeal or petition for review, despite the absence of specific direction to do so from the appellate court.



HARBOUR v ANDERSON (Appeal Fees) 48 CA4 260 [See: CCP 1033.5; Bankes v Lucas 9 CA4 365]



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1365 REVIEW DENIED Under a contract that authorized the award of attorney fees to the prevailing party in litigation, a plaintiff was the prevailing party and entitled to attorney fees incurred in an appeal that reversed a punitive damages award but affirmed compensatory damage awards.



MUSTACHIO v GREAT WESTERN (Prevailing Party) 48 CA4 1145 [See: CivC 1717; Hsu v Abbara 9 C4 863]



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1366 If a connection between an arbitrator and an attorney would lead the reasonable person to have an impression of possible bias, the arbitration award should not be confirmed, regardless of whether there was any actual impropriety.



CERIALE v AMCO (Perfect Justice) 48 CA4 500 [See: Commonwealth v Continental 393 US 145; Neaman v Kaiser 9 CA4 1170, T/AT 11/92]



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--------------------

*(T/AT 10/96)

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1367 Banks and investment brokers do not owe non-customers a duty to act reasonably in opening or maintaining the accounts of customers.



SOFTWARE DESIGN v HOEFER & ARNETT (Crooked Consultant) 49 CA4 472 [See: Sun 'n Sand v UCB 21 C3 671; Dodd v Citizens Bank 222 CA3 1624; Roy v Wells Fargo 39 CA4 1051, T/AT 12/95]



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1368 In preparing audits, auditors do not owe a duty of reasonable care to anyone but their clients and express third party beneficiaries, and if a written agreement exists between auditor and client, parol evidence is inadmissible to modify it to add an express beneficiary.



SOFTWARE DESIGN v PRICE WATERHOUSE (Crooked Consultant) 49 CA4 464 [See: Bily v Arthur Young 3 C4 370, T/AT 11/92]



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1369 DEPUBLISHED If a duty is imposed by ordinance, the doctrine of primary assumption of the risk cannot be applied to justify the conclusion that no duty was owed.



ZUBRICK v FORD (Skiers Code) 48 CA 4 [See: Placer County Code 12.130 etseq; EvC 669; Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92]



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1370 The manufacturer of a prescription drug may be strictly liable for a defect that results from failure to give adequate warning of risks that were known or reasonably knowable by the manufacturer.



CARLIN v SUPERIOR COURT (Halcion) 13 C4 1104 [See: Greenman v Yuba 59 C2 57; Barker v Lull 20 C3 413; Brown v Superior Court 44 C3 1049; Anderson v Owens 53 C3 987; Carlin v Superior Court T/AT 4/95]



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1371 REVIEW DENIED A trial court's approval of the settlement of a class action should not be disturbed except for abuse of discretion; the fee awarded to an attorney for representing a class should not be based on a percentage of the settlement unless the settlement's actual value is certain or can be easily calculated, but should be based on the time spent by the attorney.



DUNK v FORD (Mustang) 48 CA4 1794 [See: CCP 382; Malibu v Superior Court 103 CA3 573; Officers v Civil Svce Com 688 F2 615; Serrano v Priest 20 C3 25; Rebney v Wells Fargo 220 CA3 1117]



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1372 A suit cannot be maintained as a class action if individual questions of fact and law exist as to the claim of each class member.



SILVA v BLOCK (Police Dogs) 49 CA4 345 [See: Richmond v Dart 29 C3 462; City v Superior Court 12 C3 447]



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1373 REVIEW DENIED Ordinarily, a question of fact exists as to whether an intervening cause of harm was sufficiently extraordinary to be regarded as a superseding cause, relieving a defendant of liability. In apportioning liability under Prop 51, no reduction from non-economic damages should be made for plaintiff's comparative fault; the amounts of workers' compensation benefits and pre-verdict settlements received by plaintiff should reduce economic and non-economic damages awards in the same proportion as the jury apportioned those awards; post-verdict settlements received by plaintiff should be applied to reduce non-economic damages up to the total amount awarded by verdict against the settling party for non-economic damages, and any excess should be used to reduce economic damages.



TORRES v XOMOX (Sulfuric Acid) 49 CA4 1 [See: CCP 877; LabC 4600; DaFonte v Up-Right 2 C4 593; Espinoza v Machonga 9 CA4 268, T/AT 11/92; Balido v Improved 29 CA3 633]



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1374 The Levy rule, preventing a trial court from entering judgment under CCP 664.6 on a stipulation of settlement unless it is signed by the litigants in person, should be applied retroactively.



BURCKHARD v DEL MONTE (Retroactive Levy) 48 CA4 1912 [See: CCP 664.6; Levy v Superior Court 10 C4 578, T/AT 7/95; Peterson v Superior Court 31 C3 147; Moradi-Shalal v Fireman's 46 C3 287; Donaldson v Superior Court 35 C3 24]



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1375 REVIEW DENIED If an employer's workers' compensation lien rights are defeated because the employee failed to give the employer notice of settlement of a third party tort claim, the employee is personally liable to the employer for repayment of workers' compensation benefits that the employee received.



AMERICAN HOME v HAGADORN (WC Lien) 48 CA4 1898 [See: LabC 3600 etseq; Board v Glover 34 C3 906; Abdala v Aziz 5 CA4 369; O'Dell v Freightliner 10 CA4 645, T/AT 12/92; Kaiser v Aguiluz 47 CA4 302, T/AT 8/96; City v Sweet 12 C4 105, T/AT 1/96]



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1376 REVIEW GRANTED / REVIEW DISMISSED Under Privette, a landowner or general contractor cannot be liable to the employee of an independent contractor who is protected by workers' compensation for job related injuries resulting from the independent contractor's negligence.



VOIGTS v BRUTOCO (Privette Revisited) 49 CA4 354 [See: Privette v Superior Court 5 C4 689, T/AT 9/93]



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1377 REVIEW DENIED Termination from employment based on confidential information improperly obtained by the employer from doctors who examined the employee, and based on the employee's refusal to accept a specific course of treatment selected by the employer for the employee, violates the employee's constitutional right of privacy and is therefor in violation of public policy; doctors hired and paid by an employer to examine and evaluate an employee for the purpose of determining the employee's fitness for work or entitlement to medical leave are privileged under the Confidentiality of Medical Information Act to make conclusionary statements to the employer regarding the employee's fitness, but are not privileged to disclose facts obtained in confidence during their examinations.



PETTUS v COLE (Mandatory Rehab) 49 CA4 402 [See: CA Const I,1; Foley v Interactive 47 C3 654; Hill v NCAA 7 C4 1; CivC 56 etseq]



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1378 DEPUBLISHED The filing of a notice of violation of CC&R's, required prior to a suit in equity to enforce an equitable servitude, is protected by the litigation privilege.



CALIFORNIA RIVIERA v SUPERIOR COURT (Notice of Violation) 48 CA4 1886 [See: CivC 47(b); Silberg v Anderson 50 C3 205; Moore v Conliffe 7 C4 634, T/AT 6/94]



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1379 REVIEW DENIED The federal Airline Deregulation Act does not pre-empt state court personal injury actions by passengers against air carriers.



ROMANO v AMERICAN TRANS AIR (Claustrophobic Passenger) 48 CA4 1637 [See: 49 USC 41713; Morales v TWA 504 US 374; Rohr v County 51 C2 759; Debtor Reorganizers v State 58 CA3 691; Harris v American 55 F3 1472]



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1380 REVIEW GRANTED In an action for attorney malpractice, actual injury occurs and the statute of limitations begins to run according to the following rules: If the result of litigation against a third party will determine whether malpractice occurred, there is no actual injury until disposition of that third party lawsuit. If the result of an underlying proceeding will have no bearing on whether malpractice occurred, a question of fact exists as to when actual injury occurred. If the attorney should have filed, but never did file, a lawsuit against a third party, actual injury occurred when the statute of limitations on the third party action ran out. <NOTE: These rules represent the Court's attempt to organize existing cases, but disagree with other authority.>



JORDACHE v BROBECK (Late Tender) 49 CA4 609 [See: Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; Adams v Paul 11 C4 583, T/AT 12/95; Gailing v Rose 43 CA4 1570, T/AT 5/96; VanDyke v Dunker 46 CA4 446, T/AT 7/96; Moss v Stockdale 47 CA4 494, T/AT 8/96]



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1381 REVIEW DENIED Parties in an attorney malpractice action are entitled to a jury trial, even though the alleged malpractice occurred in a proceeding that would have been tried without a jury.



CERIALE v SUPERIOR COURT (Malpractice Bifurcation) 48 CA4 1629 [See: CA Const I, 16; FamC 2550; CCP 598; Smith v Lewis 13 C3 349]



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1382 A liability policy excluding coverage for a watercraft with an inboard engine did not cover a Waverunner propelled by an inboard jet pump engine; a liability policy that provided coverage for a particular boat and dinghies used to service it did not cover a watercraft that had once been used to service the insured boat, but was not being so used at the time of the accident and was in a different body of water.



CALIFORNIA CASUALTY v NORTHLAND (Waverunner) 48 CA4 1682 [See: Waller v Truck 11 C4 1, T/AT 10/95; Producers v Sentry 41 C3 903]

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1383 REVIEW DENIED Under a liability policy issued to a trucking company and containing a PUC endorsement extending coverage to any vehicles operated under a PUC permit issued to the insured, a sub-hauler operating under the insured's PUC permit was covered to the full extent of the policy, even though the sub-hauler was covered by its own separate liability policy.



CONDOR v WILLIAMSBURG (PUC Endorsement) 49 CA4 554 [See: Transamerica v Tab 12 C4 389, T/AT 2/96; Samson v Transamerica 30 C3 220; Giordano v American 97 CA2 309]



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1384 DEPUBLISHED Although InsC 11580 makes a judgment creditor of the insured a third party beneficiary of the insured's right to have the carrier pay the judgment, the judgment creditor is not a third party beneficiary of, and is not entitled to enforce, an arbitration clause in the policy; a no-assignment clause in a liability insurance policy prevents effective assignment by an insured of rights under the policy.



NORCAL v RAHN (No Assignment) 49 CA4 312 [See: InsC 11580; Murphy v Allstate 17 C3 937]



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1385 The reciprocal rights and duties of several insurers who cover the same event flow from equitable principles rather than from the insurance contracts, and so carriers can enforce such rights against each other.



MARYLAND CAS v NATIONAL (Duty to Defend) 48 CA4 1822 [See: Miller v American Home 47 CA4 844, T/AT 8/96; Amer Auto v Seaboard 155 CA2 192]



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1386 REVIEW DENIED A trial court may not extend by more than 20 days the period specified by CCP 659a within which to file an affidavit in support of a new trial.



ERIKSON v WEINER (Limited Extension) 48 CA4 1663 [See: CCP 659a; People v Pacini 120 CA3 877; Wiley v Southern 220 CA3 177; Clemens v Regents 8 CA3 1]



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1387 If a contract for the sale of real estate provides for attorney fees to the prevailing party in an action arising from the transaction, the prevailing party to a fraud action arising from the sale may be entitled to attorney fees under the contract; however, if buyers suing for fraud establish that a fraud occurred, but do not receive relief because they fail to establish damage, the sellers are the prevailing parties and are entitled to attorney fees under the contract.



CHILDERS v EDWARDS (No Relief) 48 CA4 1544 [See: CCP 1021, 1032, 1033.5; Xuereb v Marcus 3 CA4 1338; Lerner v Ward 13 CA4 155, T/AT 4/93; Palmer v Shawback 17 CA4 296, T/AT 9/93; Moallem v Coldwell 25 CA4 1827; Adam v DeCharon 31 CA4 708, T/AT 2/95; Pirkig v Dennis 215 CA3 1560]



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1388 REVIEW DENIED A trial court's order denying the appointment of counsel for a litigant under 42 USC 2000 is not appealable, and an attempted appeal from such an order should not be treated as a writ unless the parties have stipulated to do so.



PONCE-BRAN v TRUSTEES OF CSU (No Appeal) 48 CA4 1656 [See: 42 USC 2000e; Coopers v Livesay 437 US 463; Cohen v Beneficial 337 US 541]



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1389 REVIEW GRANTED Before giving a conservator authority to withdraw life support, a trial court should appoint independent counsel for the conservatee.



WENDLAND v SUPERIOR COURT (Life Support) 49 CA4 44 [See: ProbC 1471; Cons of Sides 211 CA3 1086; Cons of Drabick 200 CA3 185]



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1390 REVIEW GRANTED The press and public have a constitutional right to attend civil proceedings and cannot be excluded for the sole purpose of preventing jurors from being exposed to inadmissible evidence.



NBC v SUPERIOR COURT (Eastwood Exclusion) 49 CA4 487 [See: Richmond Newspapers v Virginia 448 US 555; Waller v Georgia 467 US 39]



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--------------------

*(T/AT 11/96)

--------------------

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1391 Police have no duty to warn a crime witness about dangers of which s/he is already aware; public prosecutors are absolutely immune from liability for endangering the lives of crime witnesses by conduct connected with case preparation.



HERNANDEZ v CITY OF POMONA (Gang Retaliation) 49 CA4 1492 [See: Schuster v City of NY 5 NY2 75; Davidson v City 32 C3 197; Carpenter v City 230 CA3 923; Wallace v City 12 CA4 1385, T/AT 4/93; Falls v Superior Court 42 CA4 1031, T/AT 3/96]



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1392 REVIEW GRANTED Absolute immunity protects prosecutors from liability under the federal Civil Rights Act for acts performed in connection with the preparation of a case; government agencies have no immunity from liability under the Civil Rights Act; under the Civil Rights Act, a government agency may be directly liable for acts its employees performed in execution of the agency's policy or custom and for acts performed by policy-making officials, even if the officials themselves are immune from liability.



PITTS v COUNTY OF KERN (Prosecutorial Misconduct) 49 CA4 1430 [See: 42 USC 1983; Tenney v Brandhove 341 US 367; Imbler v Pachtman 424 US 409; Freeman v Hittle 708 F2 442; Ybarra v Reno 723 F2 675; Leatherman v Tarrant 507 US 163]



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1393 REVIEW GRANTED / REVIEW DISMISSED AS TO SOME PARTIES As to general negligence, scientists performing research for a product manufacturer owe a duty only to the manufacturer and express third party beneficiaries of their relationship with the manufacturer; as to negligent misrepresentation, they owe a duty only to persons they intended to be affected by their research.



ARTIGLIO v CORNING (Silicone Studies) 49 CA4 845 [See: Ultramares v Touche 174 NE 441; Bily v Arthur Young 3 C4 370, T/AT 11/92]



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1394 REVIEW GRANTED A local ordinance cannot establish a duty inconsistent with the rule of state case law (primary assumption of the risk) that participants in active sports owe no duty of reasonable care to each other.



CHEONG v ANTABLIN (Skier's Code) 49 CA4 1682 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92; Zubrick v Ford 48 CA4 4, T/AT 10/96; Placer County Code 12.130 etseq; CA Const 11,7]



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1395 The sole stockholder of a professional law corporation owes a client the fiduciary duty of acting ethically to preserve the client's interest, among other things, by maintaining the client's money in a separate trust account.



T&R FOODS v ROSE (Professional Corporation) 47 CA4 Supp 1 [See: R of ProfCond 4-100 (fmrly 8-801); Baranowski v State Bar 24 C3 153; Schultz v Harney 27 CA4 1611, T/AT 10/94]



------------



1396 The National Traffic and Motor Vehicle Safety Act does not pre-empt state courts from imposing liability on the basis of automobile safety standards more stringent than those contained in the Act.



KETCHUM v HYUNDAI (Seat Belt Pre-emption) 49 CA4 1672 [See: 49 USC 30101 etseq (formerly 15 USC 1381 etseq); Buccery v GMC 60 CA3 533; Nissan v Superior Court 212 CA3 980; Medtronic v Lohr 116 SCt 2240]



------------



1397 REVIEW GRANTED A liability insurer has no duty to protect its insured against a judgment for punitive damages by settling a claim against the insured within policy limits.



PPG v TRANSAMERICA (Windshield Puni's) 49 CA4 1120 [See: CivC 3294; InsC 533; J.C. Penney v MK 52 C3 1009; Ford v Home 116 CA3 374; Comunale v Traders 50 C2 654; Crisci v Security 66 C2 425; Camelot v Scottsdale 27 CA4 33, T/AT 8/94]



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1398 Mandatory punitive damages provisions of the Home Equity Sales Contract Act apply when the purchaser of equity violates the act after giving the seller notices required by the act, but does not apply when the purchaser violates the act after failing to give notices required by the act.



BOQUILON v BECKWITH (Home Equity Sale) 49 CA4 1697 [See: CivC 1695 etseq; Segura v McBride 5 CA4 1028; Sokolow v County 213 CA3 231]



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1399 REVIEW DENIED A jury may be informed of prior punitive damages awards against the defendant for the conduct at issue in a particular case so that it can determine whether further punishment is necessary, but an appellate court should not consider such prior awards unless evidence of them was presented to the jury.



STEVENS v OWENS-CORNING (Prior Puni's) 49 CA4 1645 [See: Pacific Mutual v Haslip 499 US 1; BMW v Gore 116 SCt 1589; Cummings v Occupational 10 CA4 1291, T/AT 1/93; Kenly v Ukegawa 16 CA4 49, T/AT 8/93; Adams v Murakami 54 C3 105; Neal v Farmers 21 C3 910; Vossler v Richards 143 CA3 952; Gagnon v Continental 211 CA3 1598]



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1400 REVIEW DENIED A hospital that follows a policy of providing medical treatment and testing to employees who are exposed on the job to the possibility of blood borne disease does so in its capacity as employer, and employees are restricted to workers' compensation remedies for injuries that result from such treatment or testing.



ALANDER v VACAVALLEY HOSPITAL (Needle Stick) 49 CA4 1298 [See: LabC 3602; Wickham v NA Rockwell 8 CA3 467; Duprey v Shane 39 C2 781; Bell v Macy's 212 CA3 1442; Sturtevant v County 228 CA3 758; Lake v Lakewood 20 CA4 47, T/AT 1/94]



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1401 REVIEW GRANTED A child injured before birth by a condition of the workplace in which the child's mother was employed is not restricted to workers' compensation remedies against the mother's employer.



SNYDER v MICHAEL'S STORES (Unborn Employee) 49 CA4 709 [See: LabC 3600 etseq; CivC 43.1; Bell v Macy's 212 CA3 1442; Agnew-Watson v County T/AT 1/95]



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1402 REVIEW GRANTED An employee who suffers employment discrimination based on a disability resulting from a job-related injury is entitled to maintain a tort action against the employer under FEHA.



CITY OF MOORPARK v SUPERIOR COURT (Less Protection) 49 CA4 973 [See: LabC 132a; GovC 12993(a); Usher v American 20 CA4 1520, T/AT 2/94; Angell v Peterson 21 CA4 981, T/AT 3/94; Langridge v Oakland USD 25 CA4 664, T/AT 7/94; City of Moorpark v Superior Court T/AT 4/96; Cammack v GTE (RevGrtd) 48 CA4 207, T/AT 9/96]



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1403 REVIEW GRANTED An employer's election to extend workers' compensation coverage to an otherwise non-covered employee by purchasing workers' compensation insurance is effective only if by conscious choice and does not result from the automatic inclusion of statutorily mandated coverage in a general liability policy.



STATE FARM v WCAB (Employed Son) 49 CA4 1623 [See: InsC 11590; LabC 3351, 3352, 4150, 4151]



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1404 REVIEW GRANTED If an employer reasonably and in good faith believes accusations of sexual harassment by an employee, termination of the employee does not violate an employment contract not to terminate without good cause, even though the employee did not commit the acts of which s/he was accused.



COTRAN v ROLLINS (Unproved Harassment) 49 CA4 903 [See: Wilkerson v Wells Fargo 212 CA3 1217; Pugh v See's 116 CA3 311; Pugh v See's 203 CA3 743]



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1405 REVIEW DENIED Government agencies and their employees may benefit from statutory protection against SLAPP actions



BRADBURY v SUPERIOR COURT (Government SLAPP) 49 CA4 1108 [See: Garrison v Louisiana 379 US 64; Nadel v Regents 28 CA4 1251, T/AT 11/94; Nizam-Aldine v City 47 CA4 364, T/AT 8/96]



------------



1406 REVIEW DENIED Statements made by a consultant in fulfillment of its contractual obligation to evaluate proposals made by plaintiff were not in furtherance of the constitutional right of freedom of speech and are not protected by the SLAPP statute.



ERICSSON v CSI (Contract SLAPP) 49 CA4 1591 [See: CCP 425.16; Wilcox v Superior Court 27 CA4 809, 9/94; Xi Zhao v Wong 48 CA4 1114, T/AT 9/96]



------------



1407 REVIEW DENIED Statements about litigation made at a press conference are not protected by the litigation privilege.



ROTHMAN v JACKSON (Michael Jackson) 49 CA4 1134 [See: CivC 47: Silberg v Anderson 50 C3 205; Moore v Conliffe 7 C4 634, T/AT 6/94]



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1408 REVEIW DENIED Actual injury occurs, and the statute of limitations begins to run, on an action for an accountant's malpractice in preparing a tax return when the IRS issues a notice of deficiency.



TALLEY v HENRIKSEN (IRS Audit) 49 CA4 1613 [See: CCP 339; International v Fedderson 9 C4 606, T/AT 4/95; Adams v Paul 11 C4 583, T/AT 4/96; Wood v Elling 20 C3 353]



------------



1409 REVIEW DENIED In an action for negligent misrepresentation against an accountant based on errors in auditing a client's books, the two year statute of limitations for accountant malpractice should be applied, rather than the three year statute of limitations for fraud.



VENTURA v MACKER (Thoroughbred) 49 CA4 1528 [See: CCP 338, 339; Smyth v USAA 5 CA4 1470; Loken v Century 21 36 CA4 263, T/AT 8/95]



------------



1410 In an agreement between doctor and patient, a clause requiring arbitration of all disputes, but permitting either party to request trial de novo in the event of an arbitration award in excess of $25,000 violates public policy, and a court should confirm the arbitration award and refuse to grant trial de novo.



SAIKA v GOLD (Unilateral Arbitration) 49 CA4 1074 [See: CCP 1294; Beynon v Garden Grove 100 CA3 698; Moncharsh v Heily 3 C4 1]



------------



1411 A trial court did not abuse its discretion by ordering a personal injury claim and an uninsured motorist claim arising from the same accident to combined arbitration, with the proviso that any award on the uninsured motorist claim would be binding, while any award on the personal injury claim would be subject to request for trial de novo.



GORDON v G.R.O.U.P. (Combined Arbitration) 49 CA4 998 [See: InsC 11580.2; CCP 1141.11; CA RofC 1600, 1600.5; Goulart v Crum 222 CA3 527]



------------



1412 REVIEW DENIED Under a CGL policy covering liability for bodily injury resulting from an "occurrence," the insurer has no obligation to defend or indemnify an insured against liability for incidental emotional distress damages caused by the insured's non-covered economic or business torts.



AMERICAN INTERNATIONAL v FIDELITY (Emotional Business) 49 CA4 1558 [See: Waller v Truck 11 C4 1, T/AT 10/95]



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1413 REVIEW DENIED After two years, a life insurance policy is incontestable by the carrier on any ground but non-payment of premium, and this is so even if, on the application, the insured intentionally concealed the fact that he had AIDS and the identity of his treating physician, and intentionally postponed making a claim for disability benefits until after the period of contestability had expired.



UNITED FIDELITY v EMERT (Incontestability) 49 CA4 941 [See: InsC 10113.5]



------------



1414 A courtroom local rule requiring that opposed motions for summary judgment be stricken from the calendar until attorneys for both sides met and conferred and submitted a statement of agreed and contested facts was invalid because it was inconsistent with CCP sections concerning motions for summary judgment, was not made in accordance with CCP 575.1, which requires, among other things, publication of such rules, and violated GovC 68070, which provides that a courtroom local rule can not take effect until the January 1 or July 1 following the 30th day after it has been filed and made available for public examination.



KALIVAS v BARRY CONTROLS (Courtroom Rule) 49 CA4 1152 [See: CCP 575.1; GovC 68070; 20th Century v Superior Court 28 CA4 666, T/AT 10/94; Mentzer v Hardoin 28 CA4 1365]



------------



1415 An Illinois physician who treated a California resident in Illinois, provided a prescription that the patient filled in California, and advised the patient in California by phone from Illinois, did not have sufficient contact with the state of California to be subject to jurisdiction here.



PRINCE v URBAN (Non Resident Physician) 49 CA4 1056 [See: Wright v Yackley 459 F2 287; Crea v Busby 48 CA4 509, T/AT 9/96]



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1416 REVIEW DENIED Use of a fictitious business name does not create a separate entity; once a defendant has obtained a dismissal of an action against it, the court cannot enter a default against the defendant's fictitious name in the same action.



PINKERTON'S v SUPERIOR COURT (Fictitious Name) 49 CA4 1432 [See: B&PC 17900 etseq; Providence v Valley Forge 42 CA4 1194, T/AT 3/956]



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1417 If an action is not brought to trial within two years after it is commenced, a discretionary dismissal under CCP 583.410 does not require the defendant to show that delay resulted in prejudice, and the dismissal may be entered even though, at a case management conference, the trial court routinely set a trial date within five years after the action was filed.



LOPEZ v STATE (No Prejudice) 49 CA4 1292 [See: CCP 583.410; Freedman v PG&E 196 CA3 696]



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1418 REVIEW DENIED In an action founded on negligence, damages are not capable of being made certain until a jury determines whether and to what extent the plaintiff was comparatively negligent, so pre-judgment interest is not available; in an action against a bank for paying checks on a forged endorsement, the 3 year statute of limitations on actions for taking or injuring goods or chattels applies.



WISPER v CALIFORNIA COMMERCE BANK (Forged Checks) 49 CA4 948 [See: CCP 338, 339; CivC 3287; Sun 'n Sand v UCB 21 C3 671; Marine v Paceco 145 CA3 991]



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1419 REVIEW DENIED A plaintiff who succeeds on only one of twelve causes of action, but receives a money judgment, is a "party with a net monetary recovery" as specified by CCP 1032, and is entitled to costs as of right.



MICHELL v OLICK (Net Monetary Recovery) 49 CA4 1194 [See: CCP 1032; Lincoln v Schurgin 39 CA4 100; Pirkig v Dennis 215 CA3 1560]



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1420 A trial court has discretionary authority to award, as costs, to the prevailing party in litigation its share of the expenses of unsuccessful, judicially ordered, pre-trial mediation.



GIBSON v BOBROFF (Unsuccessful Mediation) 49 CA4 1202 [See: CCP 1033.5; Applegate v St Francis 23 CA4 361, T/AT 4/94]



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1421 Under CCP 1021.6, a person suing for indemnity is not entitled to recover attorney fees for defending an action unless s/he actually was subject to a judgment because of the liability of the person from whom indemnity is sought and unless the person seeking indemnity was completely free from fault.



HOLLOWAY v CRESCENT (Unconscious Trucker) 49 CA4 751 [See: CCP 1021.6; Western v San Pedro 8 C4 100, at 9/94]



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1422 REVIEW GRANTED A NY law firm, not admitted in California, that rendered services in California, to a California client, in a California dispute, between California parties, over a contract formed in California, which was to be governed by California law, thereby engaged in the unauthorized practice of law, and its fee agreement was therefore void and unenforceable, but it can recover in quantum meruit for services lawfully performed in NY.



BIRBROWER v SUPERIOR COURT (NY Lawyers) 49 CA4 801 [See: B&PC 6125; People v Merchants 189 C 531]



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1423 A trial court did not abuse its discretion by approving a Mary Carter agreement and allowing settling defendants to remain in the action.



ALCALA v SUPERIOR COURT (Mary Carter) 49 CA4 1308 [See: CCP 877.6; Abbott Ford v Superior Court 43 C3 858; Everman v Superior Court 8 CA4 466, T/AT 10/92]



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1424 A stipulated judgment based on a party's stipulation that he was negligent and that his negligence was a proximate cause of the plaintiff's injury is not res judicata in an action by the plaintiff against a different defendant and does not preclude the one who made the stipulation from testifying that he was not negligent and that his conduct was not a proximate cause of the injury.



KNOWLES v TEHACHAPI VALLEY HOSPITAL (Stipulated Judgment) 49 CA4 1083 [See: Bernhard v B of A 19 C2 807; California State Auto Assn v Superior Court 50 C3 658]



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1425 Motions in limine should not be used to prevent a party from testifying in a way that is inconsistent with deposition testimony; argument on a motion in limine should not result in an order that precludes more evidence than the motion specified.



KELLY v NEW WEST (In Limine) 49 CA4 659 [See: People v Morris 53 C3 152; Campain v Safeway 29 CA3 362]



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1426 REVIEW GRANTED In litigation between beneficiaries of a trust and the trustee, confidential communications exchanged between the trustee and its attorney may be subject to the attorney-client and attorney work product privileges.



WELLS FARGO v SUPERIOR COURT (Trustee's Attorney) 49 CA4 1320 [See: EvC 950 - 962; Roberts v City 5 C4 363]



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1427 Although not subject to subpoena in civil actions, records of medical peer review committees in hospitals are subject to subpoena by the state Medical Board.



ARNETT v DAL CIELO (Peer Review) 14 C4 4 [See: EvC 1157; Cedars v Superior Court 12 CA4 579, T/AT 3/93; Alexander v Superior Court 5 C4 1218, T/AT 12/93; Willits v Superior Court 20 CA4 90, T/AT 1/94]



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1428 REVIEW GRANTED A trial court has the power to order parties to perform reenactments or demonstrations as part of videotaped depositions; denial of review by the California Supreme Court does not justify any conclusion or inference about the Supreme Court's view.



EMERSON v SUPERIOR COURT (Videotaped Reenactment) 49 CA4 931 [See: CCP 2025; Stermer v Superior Court 20 CA4 777, T/AT 2/94]



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--------------------

*(T/AT 12/96)

--------------------

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1429 After taking custody of a decedent's body, a county coroner owes relatives a statutory duty to make diligent efforts to locate and inform them of the decedent's death.



DAVILA v COUNTY OF LA (Careless Coroner) 50 CA4 137 [See: GovC 815.6, 27471; H&SC 7104; Christensen v Superior Court 54 C3 868; Posey v State 180 CA3 836]



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1430 An action against a health care provider for negligence in failing to properly secure an X-ray table on which a patient was lying is an action for malpractice and subject to the malpractice statute of limitations.



BELLAMY v APPELLATE DEPARTMENT (X-Ray Table) 50 CA4 797 [See: CCP 364; Gopaul v Herrick 38 CA3 1002; Murillo v Good Samaritan 99 CA3 50; Andrea N v Laurelwood T/AT 5/93; United v Superior Court 42 CA4 500, T/AT 3/96; Flowers v Torrance Mem 8 C4 992, T/AT 1/95]



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1431 REVIEW GRANTED An employee who holds shares in the employer corporation pursuant to a mandatory repurchase agreement loses shareholder's rights upon termination of employment and is no longer owed a fiduciary duty by majority shareholders.



STEPHENSON v DREVER (Employee Shareholder) 50 CA4 174 [See: Jones v H F Ahmanson 1 C3 93]



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1432 Even though it suspected that the insured was innocent, a fire insurance carrier did not act in bad faith by delaying, until the insured was acquitted, payment to an insured who had been charged with arson in connection with the covered loss.



LEE v CRUSADER (Suspected Innocence) 49 CA4 1750 [See: Carlton v St Paul 30 CA4 1450, T/AT 1/95; Othman v Globe 759 F2 1458]



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1433 REVIEW DENIED The federal Food, Drug and Cosmetic Act does not pre-empt state products liability actions.



ARMSTRONG v OPTICAL (Medical Device Pre-emption) 50 CA4 580 [See: 21 USC 360 etseq; Evraets v Intermedics 29 CA4 779, T/AT 11/94; Scott v Ciba 38 CA4 307, T/AT 10/95; Powers v Optical T/AT 10/95; Kennedy v Collagen 67 F3 1453; Medtronic v Lohr 116 SCt 2240]



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1434 Members of a law firm's executive committee, who terminated a partner privately and without raising their voices, and who subsequently assigned an employee to guard the terminated partner until he left the building, did not thereby act outrageously; the plaintiff's former law partners, who made neutral, non-negative, statements to others regarding the reason for plaintiff's separation from the firm, did not thereby act wrongfully such as to incur liability for interference with prospective business advantage.



HELLER v PILLSBURY... (Terminated Partner) 50 CA4 1367 [See: State Rubbish Collectors v Siliznoff 38 C2 330; Agarwal v Johnson 25 C3 932; Della Penna v Toyota 11 C4 376, T/AT 12/95; REST(2) 46(com.d)]



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1435 A specific sum of money held for plaintiff by his fiduciary was capable of being converted by the fiduciary.



FISCHER v MACHADO (Commission Merchant) 50 CA4 1069 [See: Moore v Regents 51 C3 120; Haigler v Donnelly 18 C2 674; Weiss v Marcus 51 CA3 590; McCafferty v Gilbank 249 CA2 569]



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1436 An action for damage to realty resulting from entry by a negligently started fire is an action for trespass to land.



ELTON v ANHEUSER-BUSCH (Trespass by Fire) 50 CA4 1301 [See: CCP 1021.9; Coley v Hecker 206 C 22; Wilson v Interlake 32 C3 229]



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1437 Liability for intentional spoliation of evidence may be based on the defendant's knowledge that destruction of evidence was substantially certain to interfere with the plaintiff's ability to succeed in litigation; an employee can maintain a tort action against her/his employer for spoliation of evidence.



GOMEZ v ACQUISTAPACE (WC Spoliation) 50 CA4 740 [See: LabC 3600; Smith v Superior Court 151 CA3 491; Velasco v Commercial 169 CA3 874; Continental v SuperCt 190 CA3 156; Coca-Cola v SuperCt 233 CA3 1273; Ernst v Fireman's T/AT 6/93]



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1438 A workers' compensation insurer's right to recoup benefits it paid to an employee is based on equitable subrogation, so a third party who settles with the employee without knowledge of the employee's potential claim for workers' compensation benefits is thereby released from liability to the insurer.



INSURANCE COMPANY OF N.A. v TLC (WC Subrogation) 50 CA4 90 [See: LabC 3850 etseq; Board of Administration v Glover 34 C3 906]



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1439 If an employer is not entitled to recoup workers' compensation benefits paid to an injured employee, Prop 51 requires that the employee's judgment for economic damages against a negligent third party who contributed to the injury be reduced only by the portion of the workers' compensation award allocated to economic damages, and the allocation should be based on the allocation made by the trier of fact in the employee's action against the negligent third party.



SCALICE v PERFORMANCE (WC Offset) 50 CA4 221 [See: CivC 1431-1431.5; Espinoza v Machonga 9 CA4 268; DaFonte v Up-Right 2 C4 593; Witt v Jackson 57 C2 57]



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1440 REVIEW DENIED An entertainment company's casting director held a sufficiently supervisory position and his sexual acts were sufficiently related to the employer's enterprise to make the employer strictly liable for the director's sexual assault on an aspiring actor.



JOHN DOE v CAPITAL CITIES (Casting Couch) 50 CA4 1038 [See: GovC 12900 etseq; Mary M v City 54 C3 202; Farmers v County 11 C4 992, T/AT 1/96; Lisa M v Mayo 12 C4 291, T/AT 1/96; Evan F v Hughson 8 CA4 828, T/AT 10/92; Kelly-Zurian v Wohl 22 CA4 397, T/AT 3/94]



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1441 A trial court that denied a defendant's motion for summary judgment in an employment discrimination claim did not abuse its discretion by subsequently finding the plaintiff's claim to be frivolous and awarding attorney fees to the defendant.



BOND v PULSAR (Discrimination Fees) 50 CA4 918 [See: Christiansburg v EEOC 434 US 412; Cummings v Benco 11 CA4 1383, T/AT 3/93]



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1442 REVIEW DENIED A trial court abused its discretion by denying a motion for change of venue in an FEHA action brought in a county other than one designated by FEHA.



FORD v SUPERIOR COURT (FEHA Venue) 50 CA4 306 [See: GovC 12965(b); Brown v Superior Court 37 C3 477]



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1443 REVIEW DENIED A hotel employee's agreement to submit grievances to internal problem solving procedures that involved submission of disputes to a review panel consisting solely of employees of the hotel, with hotel management given the power to decide whether employees called as witnesses by the complainant could actually testify and to resolve ties, was not an arbitration agreement and did not preclude the employee from litigating a claim for employment discrimination.



CHENG-CANINDIN v RENAISSANCE (Internal Problem Solving) 50 CA4 676 [See: Mitsubishi v Soler 473 US 614; Painters v Moen 128 CA3 1032]



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1444 REVIEW DENIED An employer's affirmative action plan and self-critical analyses prepared with respect to that plan are relevant in employment discrimination cases where the discrimination claimed would violate federal law and are not privileged against discovery.



CLOUD v SUPERIOR COURT (Self-Critical Analysis) 50 CA4 1552 [See: EvC 911; Gonzales v Police Department 901 F2 758]



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1445 A statutorily required report to the Commission on Teacher Credentialing is privileged as a statement in a proceeding authorized by law; an agreement purporting to prohibit statutorily required disclosure to the Commission on Teacher Credentialing is unenforceable as contrary to public policy.



PICTON v ANDERSON UHSD (Accused Teacher) 50 CA4 726 [See: EdC 44200 etseq; CivC 47; Ascherman v Natanson 23 CA3 861]



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1446 Under an employer's liability policy that did not offer general liability coverage and that specifically excluded liability for discrimination, the carrier had no obligation to defend the insured against a claim for sex discrimination.



MICHAELIAN v SCIF (Discrimination Exclusion) 50 CA4 1093 [See: InsC 533; Chadwick v Fire Ins Exch 17 CA4 1112, T/AT 10/93; JC Penney v MK 52 C3 1009]



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1447 REVIEW DENIED Under an employer's liability policy that specifically granted coverage for discrimination, but excluded any coverage prohibited by InsC 533, an insurer had a duty to defend its insured against an action for sex discrimination.



MELUGIN v ZURICH (Unintentional Discrimination) 50 CA4 658 [See: InsC 533; Lipson v Jordache 9 CA4 151, T/AT 11/92; Coit v Sequoia 14 CA4 1595, T/AT 6/93]



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1448 REVIEW DENIED Under an automobile liability policy that covered the insured while driving a vehicle he did not own, but excluded coverage for "bodily injury arising out of the ... use of a vehicle while used to carry persons or property for a charge," the carrier had no duty to defend or indemnify against liability for injury that occurred while the insured, in the course of his employment as a driver for a limousine service, was driving his employer's vehicle back to the office after dropping off a fare-paying passenger.



FARMERS v KNOPP (Limo Driver) 50 CA4 1415 [See: ACL v Northbrook 17 CA4 1773, T/AT 11/93]



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1449 REVIEW DENIED Under an automobile liability policy that insured residents of the policy holder's household, the insurer had no obligation to defend or indemnify the policy holder's son, who had once been a resident of the policy holder's household, but who was homeless at the time of the accident in question.



BLUEHAWK v CONTINENTAL (Residence Lost) 50 CA4 1126 [See: GovC 244; Safeco v Gibson 211 CA3 176; Northwestern v Davis 90 CA3 782; Allstate v Smith 9 CA3 898]



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1450 REVIEW DENIED The language of a CGL policy extended its advertising injury coverage to a claim for trademark infringement.



LEBAS v ITT HARTFORD (Advertising Injury) 50 CA4 548 [See: Lebas v ITT Hartford, T/AT 5/96; Bank of the West v Superior Court 2 C4 1254, T/AT 9/92]



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1451 Under the language of an excess policy, the insurer had no obligation to "drop down" and provide a defense to a common insured before the liability limits of all primary insurers on the risk were exhausted.



COMMUNITY REDEVELOPMENT v AETNA (Horizontal Exhaustion) 50 CA4 329 [See: Hartford v Superior Court 23 CA4 1774, T/AT 5/94]



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1452 REVIEW DENIED An action for indemnity between carriers who all insured the same company against the same liability is governed by the 2 year statute of limitations established by CCP 339 for an action not based on an instrument in writing, rather than the 4 year statute established by CCP 337, for an action that is based on an instrument in writing.



CENTURY v SUPERIOR COURT (No Privity) 50 CA4 1115 [See: CCP 337, 339; Liberty v Colonial 8 CA3 427]



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1453 An unlicensed general contractor who was also acting in the capacity of a developer, and thereby subject to strict liability for construction defects, is precluded by the unlicensed contractor statute, found at B&PC 7031, from bringing contract actions for compensation, but is not prevented from seeking equitable indemnity from subcontractors for defects resulting from their negligence.



RANCHWOOD v JIM BEAT CONSTRUCTION (Unlicensed Contractor) 49 CA4 1397 [See: B&PC 7031; McCarroll v LA County Carpenters 49 C2 45; Davis v Superior Court 1 CA3 156; S & Q v Palma 179 CA2 364]



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1454 An attorney who, seven months before filing an action against a client's former employer, sent an investigator to interview the employer's employees, without knowledge that the employees were represented by counsel in the matter and before there was a matter in which they were represented, did not thereby violate the rules of professional conduct, and a trial court did not abuse its discretion by refusing to disqualify the attorney.



JORGENSEN v TACO BELL (Pre-suit Investigation) 50 CA4 1398 [See: CA RofPC 2-100; Continental v Superior Court 32 CA4 94, T/AT 3/95]



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1455 When a party presents evidence that raises a significant question relating to the foundation of an expert's opinion filed in connection with a motion for summary judgment or summary adjudication, a deposition of the expert limited to that subject should be allowed, even though there has been no exchange of designated experts as required by CCP 2034.



ST. MARY MEDICAL CTR v SUPERIOR COURT (Expert Deposition) 50 CA4 1531 [See: CCP 2034; County of LA v Superior Court 224 CA3 1446]



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1456 A trial court did not abuse its discretion in imposing sanctions for maintaining a frivolous action on plaintiffs who were passengers in a vehicle struck in the rear and who, after an arbitrator found it to be without merit, requested trial de novo in their claim against the driver of the vehicle in which they were riding, and whose attorney's opening statement cited no facts from which liability could be found.



MUEGA v MENOCAL (Frivolous Action) 50 CA4 868 [See: CCP 128.5; Dwyer v Crocker 194 CA3 1418; Tenderloin v Sparks 8 CA4 299]



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1457 DEPUBLISHED When a discovery referee is appointed over the plaintiff's objection, and the plaintiff thereafter fails to pay its allocated portion of the referee's fee, the trial court may not order the plaintiff's lawyer to pay the referee, and may not order anybody to pay it without determining whether the referee's fee was reasonable or necessary.



McMILLAN v SUPERIOR COURT (Referee's Fee) 50 CA4 246 [See: CCP 645.1, 1023; Solorzano v Superior Court 18 CA4 603, T/AT 11/93; McDonald v Superior Court 22 CA4 364, T/AT 3/94]



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--------------------

*(T/AT 1/97)

--------------------

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1458 REVIEW DENIED An agent who makes representations regarding the effect of the coverage purchased by an insured owes the insured a duty of reasonable care in making those representations.



PAPER SAVERS v NACSA (Insurance Agent's Duty) 51 CA4 1090 [See: Jones v Grewe 189 CA3 950; Free v Republic 8 CA4 1726, T/AT 11/92; Clement v Smith 16 CA4 39, T/AT 8/93; Desai v Farmers 47 CA4 1110, T/AT 9/96]



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1459 Liability for negligent misrepresentation can not be imposed unless the defendant knew or should have known that his/her representations were false; the presumption that a seller of realty knows or should know the location of property lines may be rebutted by proof that its belief in the location of the boundaries was reasonable.



QUALITY v HALLAK (Car Wash Encroachment) 50 CA4 1687 [See: Hauter v Zogarts 14 C3 104; Marvin v Adams 224 CA3 956]



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1460 The rule abolishing the strict liability of landlords for latent defects in residential apartments should be applied retroactively.



MCCARTHY v MARTINSON (Retroactive Peterson) 51 CA4 632 [See: Becker v IRM 38 C3 454; Peterson v Superior Court 10 C4 1185, T/AT 10/95]



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1461 The federal Copyright Act pre-empts state courts from hearing actions for invasion of privacy based on plaintiff's knowing appearance in a motion picture.



FLEET v CBS (Unpaid Actor) 50 CA4 1911 [See: CivC 3344; 17 USC 100 etseq; Montana v SJ Mercury News 34 CA4 790, T/AT 6/95; Eastwood v Superior Court 149 CA3 409]



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1462 REVIEW GRANTED The constitutional right to be free of unreasonable search and seizure can be violated only by government action, so a civil rights lawsuit against privately employed security guards cannot exist for its violation.



JONES v KMART (Search and Seizure) 50 CA4 1898 [See: CivC 52.1; US Const AmIV; CA Const I,13; Skinner v Railway 489 US 602; Hill v NCAA 7 C4 1; People v Zelinski 24 C3 357]



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1463 DEPUBLISHED If a majority of members of the body that adopted a municipal zoning ordinance did so for the purpose of retaliating against a person who had previously sued the municipality, the municipality could be liable for violating the federal Civil Rights Act.



CITY AND COUNTY OF SF v BULLOCK (Retaliatory Zoning) 50 CA4 1738 [See: Pembaur v Cincinnati 475 US 469; Monell v NYC 436 US 658; Bateson v Geisse 857 F2 1300; Evers v County 745 F2 1196]



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1464 REVIEW DENIED In an administrative proceeding to declare a public nuisance and order its abatement, due process is satisfied if the owner of the subject property receives adequate notice of the nature of the alleged nuisance and a meaningful opportunity to respond.



MOHILEF v JANOVICI (Ostrich Farm) 51 CA4 267 [See: Saleeby v State Bar 39 C3 547; People v Ramirez 25 C3 260; Mathews v Eldridge 424 US 319]



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1465 REVIEW GRANTED In an action under the federal Civil Rights Act brought against a municipality on behalf of a decedent for sexual harassment resulting in emotional distress but no economic damages, the portion of the California survival statute prohibiting the recovery of damages for emotional distress suffered by a decedent is inconsistent with and pre-empted by federal law.



COUNTY OF LA v SUPERIOR COURT (Surviving Discrimination) 50 CA4 1453 [See: 42 USC 1983; CCP 377.34; Robertson v Wegmann 436 US 584; Garcia v Superior Court 42 CA4 177, T/AT 3/96; Newport v Fact 453 US 247]



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1466 REVIEW DENIED The Warsaw Convention does not limit the damages that can be collected by a passenger on a charter flight who did not receive a ticket.



MICELI v MGM GRAND AIR (Warsaw Convention) 51 CA5 702 [See: Block v Compagnie National 386 F2 323; Chan v Korean AL 490 US 122]



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1467 REHEARING GRANTED (SEE CASE #1543) If an insurance carrier's tortious failure to defend was a proximate cause of a default judgment against the insured, the carrier may be liable for tort damages, including the amount of the default judgment.



AMATO v MERCURY (Default Damages) 51 CA4 1 [See: CivC 3333; Campbell v Superior Court 44 CA4 1308, mod 45 CA4 1232a, T/AT 6/96; Amato v Mercury 18 CA4 1784, T/AT 12/93]



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1468 REVIEW DENIED The state may exercise a lien for Medi-Cal benefits against the proceeds of a personal injury action brought by the recipient of those benefits against an agency of the state; a trial court's authority to reduce a Medi-Cal lien does not extend to pre-trial settlements.



RIDDELL v STATE (Medi-Cal Lien) 50 CA4 1607 [See: W&IC 14124.70 etseq; GovC 985; Kizer v Ortiz 219 CA3 1055]



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1469 REVIEW GRANTED / REVIEW TRANSFERRED Under a contract provision authorizing the award of attorney fees against the unsuccessful party, fees may be awarded to a defendant following voluntary dismissal by the plaintiff.



HOSKING v CARRIER (Agreed Fees) 50 CA4 1641 [See: CivC 1717; CCP 1021; Lerner v Ward 13 CA4 155, T/AT 4/93; Xuereb v Marcus 3 CA4 1338; Moallem v Coldwell 25 CA4 1827; Allstate v Loo 46 CA4 1794, T/AT 8/96; Jue v Patton 33 CA4 456, T/AT 4/94]



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1470 An unapportioned offer of compromise to multiple defendants who are jointly and severally liable may trigger the enhanced costs and pre-judgment interest provisions of the offer of compromise statute.



STEINFELD v FOOTE-GOLDMAN (Multiple Defendants) 50 CA4 1542 [See: CivC 3291; CCP 998; Taing v Johnson 9 CA4 579, T/AT 11/92; Bihun v AT&T 13 CA4 976, T/AT 4/93]



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1471 REVIEW GRANTED Code sections providing for attorney fees and enhanced costs against a party who receives a less favorable judgment after rejecting an offer of compromise may be applied for the benefit of a seller who is unsuccessfully sued under the Song-Beverly Consumer Warranty Act.



MURILLO v FLEETWOOD (Song-Beverly Costs) 51 CA4 1033 [See: CivC 1790 etseq; CCP 998, 1032; Kwan v Mercedes-Benz 23 CA4 174, T/AT 4/94]



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1472 DEPUBLISHED Evidence of the attorney fee paid by defendant is not sufficient evidence of defendant's personal worth to support an award of punitive damages.



IMUTA v NAKANO (LA Church) 51 CA4 243; 52 CA4 274A [See: Adams v Murakami 54 C3 105]



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1473 The statute of limitations on an action for wrongful termination began to run when plaintiff's employment actually terminated, not when plaintiff was given notice that it would be terminated.



ROMANO v ROCKWELL (Early Retirement) 14 C4 479 [See: Regents v Superior Court 33 CA4 1710, T/AT 5/95; Romano v Rockwell T/AT 11/95]



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1474 REVIEW DENIED Immunity provisions of the Emergency Services Act do not protect the state against liability for fraud or intentional concealment; for termination because of a physical disability resulting from a job-related injury, an employee is restricted to workers compensation remedies.



ADKINS v STATE (Medfly Lies) 50 CA4 1802 [See: GovC 8550 etseq; F&AC 5029; Farmers v State 175 CA3 494; LaBadie v State 208 CA3 1366; Teresi v State 180 CA3 239; Macias v State 10 C4 844, T/AT 8/95; City of Moorpark v Superior Court T/AT 11/96]



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1475 REVIEW DENIED An employment supervisor who fails to prevent sexual harassment is not thereby aiding and abetting, and is not personally liable under FEHA.



FIOL v DOELLSTEDT (Do-nothing Supervisor) 50 CA4 1318 [See: GovC 12900 etseq; Mogilefsky v Superior Court 20 CA4 1409, T/AT 2/94; Saunders v Superior Court 27 CA4 832, T/AT 9/94; Janken v GM 46 CA4 55, T/AT 7/96; Page v Superior Court 31 CA4 1206, T/AT 6/95; Matthews v Superior Court 34 CA4 598, T/AT 6/95]



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1476 LabC 432.7, which prohibits an employer from basing employment decisions on arrests that did not result in conviction, protects employees as well as to job applicants, but the remedy provisions, which permit the award of treble damages and attorney fees, apply only to job applicants.



FARIA v SAN JACINTO USD (Arrest Record) 50 CA4 1939 [See: LabC 432.7; Pitman v City 197 CA3 1037]



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1477 The Japanese Friendship, Commerce and Navigation Treaty of 1953, which immunizes Japanese corporations against liability resulting from their employment policies, does not apply to subsidiaries incorporated in the United States.



KIRMSE v HOTEL NIKKO (Japanese Treaty) 51 CA4 311 [See: US Const VI; 4 UST 2063, TIAS 2863; Sumitomo v Avagliano 457 US 176; Fortino v Quasar 950 F2 389; Papaila v Uniden 51 F3 54]



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1478 REVIEW DENIED The federal Railway Labor Act does not pre-empt a state action for employment discrimination based on religion.



SOLDINGER v NORTHWEST AIRLINES (RLA Pre-emption) 51 CA4 345 [See: 45 USC 151 etseq; GovC 12940; Hawaiian AL v Norris 512 US 246]



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1479 An action seeking to enjoin a defendant from the unauthorized practice of law is not a SLAPP suit because it does not arise from an exercise of defendant's right of petition.



LINSCO v INVESTORS ARBITRATION SERVICES (Arbitration Counsel) 50 CA4 1633 [See: CCP 425.16; Wilcox v Superior Court 27 CA4 809, T/AT 9/94; Xi Zhao v Wong 48 CA4 1114, T/AT 9/96]



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1480 DEPUBLISHED The SLAPP statute may be applied to an action arising from an exercise of defendant's freedom of speech, regardless of whether it was an exercise of a first amendment right in connection with a public issue; a secondary boycott is a per se violation of the Cartwright Act.



PETERS v SAUNDERS (Court Reporters) 50 CA4 1823 [See: Church v Wollersheim 42 CA4 628, T/AT 3/96; Evans v Unkow 38 CA4 1490, T/AT 11/95; Wilcox v Superior Court 27 CA4 809, T/AT 9/94; Davey v So Pac 116 C 325; B&PC 16700 etseq, 17000 etseq, 16720; Standard Oil v US 221 US 1; No Pac v US 356 US 1]



------------



1481 DEPUBLISHED A "fronting policy," in which the policy limit equals the deductible, is not insurance, and so InsC provisions determining the priority of coverage do not apply to it.



TRANSPORT v INA (Fronting Policy) 51 CA4 487 [See: InsC 11580.9; US Elevator v Associated 215 CA3 636]



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1482 A liability carrier had no obligation to defend or indemnify the insured against liability for a claim that arose after the policy expired for non-payment of premium, and subsequent reinstatement of the policy did not estop the carrier from denying coverage for that claim.



MONTELEONE v ALLSTATE (Lapsed Policy) 51 CA4 509 [See: Waller v Truck 11 C4 1, T/AT 10/95; Silva v National 58 CA3 609]



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1483 An out of state franchisee's relationship with a California franchisor was sufficient contact with the state of California to permit the exercise of long-arm jurisdiction over it by California courts.



VONS v SEABEST (E Coli) 14 C4 434 [See: Vons v Seabest T/AT 9/95; CCP 410.10; Cornelison v Chaney 16 C3 143; Oregon v SuperCt 24 CA4 1550, T/AT 6/94; Helicopteros v Hall 466 US 408; Burger King v Rudzewicz 471 US 462; World-Wide v Woodson 444 US 286]



------------



1484 REVIEW DENIED In an asbestos case in which most of plaintiffs' alleged contact with defendants' products occurred in Montana and none in California, plaintiffs resided primarily in Montana and never in California, most of the potential witnesses were from Montana and none from California, and all of the treating doctors were from Montana, a trial court did not abuse its discretion in staying the actions on the ground of forum non conveniens and providing that if, after filing the actions in Montana, plaintiffs could conclusively show Montana was not a suitable alternative jurisdiction, plaintiffs could return to the California court and request that the stays be lifted.



HANSEN v OWENS-CORNING (Asbestos Forum) 51 CA4 753 [See: CCP 410.30; Stangvik v Shiley 54 C3 744]



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1485 Since litigants in actions between new car dealers and manufacturers are entitled to a jury trial, an inflexible rule requiring the exhaustion of administrative remedies in every case is invalid as a tax on that right; under the doctrine of primary jurisdiction a trial court may, after considering all the circumstances in a particular case, decide to avail itself of the special expertise of administrative body by staying judicial proceedings until administrative remedies have been exhausted.



MILLER v SUPERIOR COURT (New Vehicles Board) 50 CA4 1665 [See: VehC 3000 etseq; Farmers v Superior Court 2 C4 377; Yamaha v Superior Court 185 CA3 1232; Yamaha v Superior Court 195 CA3 652; Ray Fladeboe v New Motor Vehicle Bd 10 CA4 51; Mathew Zaheri v Mitsubishi 17 CA4 288; Ri-Joyce v New Motor Vehicle Bd 2 CA4 445]

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1486 A claim that sexual harassment resulted in emotional distress which was not continuing, but which ended several months prior to discovery, did not place plaintiff's mental condition in controversy, and, therefore, did not justify an order directing plaintiff to submit to mental examination or imposing sanctions for plaintiff's opposition to a motion for mental examination.



DOYLE v SUPERIOR COURT (Mental Examination) 50 CA4 1878 [See: CCP 2019, 2032(a); Vinson v Superior Court 43 C3 833]



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1487 The terms of a confidential settlement agreement are not discoverable in a separate action unless the party seeking discovery shows that the need for and relevance of the information outweighs the privacy interests of parties to the agreement.



HINSHAW, WINKLER... v SUPERIOR COURT (Confidential Settlement) 51 CA4 233 [See: Board of Trustees v Superior Court 119 CA3 516; Norton v Superior Court 24 CA4 1750, T/AT 6/94; Cho v Superior Court 39 CA4 113, T/AT 11/95]



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1488 If damage alleged to have resulted from construction defects was indivisible, a settlement purporting to release plaintiff's claims against non-settling defendants on specified theories but preserve plaintiff's rights to proceed against the non-settling defendants on other theories should not have been confirmed without greater specificity as to how those claims against the non-settling defendants could be pursued.



BOBROW/THOMAS v SUPERIOR COURT (Specified Theories) 50 CA4 1654 [See: Bay Development v Superior Court 50 C3 1012; Erreca's v Superior Court 19 CA4 1475, T/AT 1/94]



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1489 REVIEW DENIED Although equitable principles are applied, an action for equitable indemnity is essentially an action at law, and the parties have a constitutional right to jury trial; if all parties had an opportunity to litigate comparative fault issues in an underlying action, the jury's apportionment of fault has the effect of collateral estoppel in a subsequent claim for equitable indemnity between defendants in that underlying action.



MARTIN v COUNTY (Equitable Indemnity) 51 CA4 688 [See: C&K v Amber 23 C3 1; Golden West v City 25 CA4 11]



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1490 The denial of habeas corpus sought on the ground that the petitioner's attorney failed to provide adequate representation may serve as collateral estoppel in a subsequent malpractice action brought by the client against the attorney and based on the criminal conviction.



YOUNAN v CARUSO (Habeas Corpus) 51 CA4 401 [See: People v Sims 32 C3 468; Lucido v Superior Court 51 C3 335]



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1491 The father of a child born out of wedlock may bring an action for wrongful death of the child without having first acknowledged the child in a written and witnessed document.



LOZANO v SCALIER (Out of Wedlock) 51 CA4 843 [See: CCP 376, 377.60; ProbC 6450]



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1492 A decision reached by a trial court is not subject to attack on the ground that the case had been under submission for more than 90 days.



HASSANALLY v FIRESTONE (Slow Judge) 51 CA4 1241 [See: CA Const VI,19; GovC 68210; Mardikian v Commission 40 C3 473]



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*(T/AT 2/97)

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1493 A shopkeeper does not owe to a customer taken hostage by a robber a duty to protect the customer by acceding to the demands of the robber.



KFC v SUPERIOR COURT (Robber's Demand) 14 C4 814 [See: Rowland v Christian 69 C2 108; Ann M v Pacific Plaza 6 C4 666, T/AT 2/94; Vandermost v Alpha Beta 164 CA3 771; KFC v Superior Court T/AT 1/96; CA Const, I,1; CivC 50; PenC 197]



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1494 A person who makes misrepresentations may be liable for foreseeable physical injury to third persons resulting from reliance on the misrepresentations by those to whom they were made; persons writing letters recommending a former employee for a position as a school vice principal may owe a duty of reasonable care to prospective students of the recommended person.



RANDI W v MUROC JUSD (Recommended Molester) 14 C4 1066 [See: REST(2d) 310, 311; PenC 11164; Randi W v Livingston USD T/AT 1/96; Rowland v Christian 69 C2 108]



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1495 A student of skiing may validly and enforceably release his/her instructor and the instructor's employer from the duty to protect the student from dangers associated with skiing.



ALLAN v SNOW SUMMIT (Ski Release) 51 CA4 1358 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92; Galardi v Seahorse 16 CA4 817, T/AT 8/93; Tan v Goddard 13 CA4 1528, T/AT 5/93; Bushnell v Japanese-American 43 C4 525, T/AT 5/96; Westlye v Look 17 CA4 1715, T/AT 11/93; Allabach v Santa Clara 46 CA4 1007, T/AT 7/96]



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1496 A defendant who participated in the marketing of a product which it did not manufacture or sell may be strictly liable for damage resulting from defects in the product if it received a direct financial benefit from its activities and from the sale of the product; and its role was integral to the business enterprise and a necessary factor in bringing the product to the initial consumer market; and it had control over, or a substantial ability to influence, the manufacturing or distribution process.



BAY SUMMIT v SHELL (Polybutylene Plumbing) 51 CA4 762 [See: Greenman v Yuba 59 C2 57; Price v Shell 2 C3 245; Kriegler v Eichler 269 CA2 224; Barth v BF Goodrich 265 CA2 228; Garcia v Halsett 3 CA3 319; Kasel v Remington 24 CA3 711]



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1497 Damages resulting from an attorney's litigation malpractice are the damages that the client would have collected in the underlying action had the attorney not been negligent; so, after settling the malpractice action, the client may not recover damages from the person who would have been liable in the underlying action.



ARCINIEGA v BANK (Two Bites) 52 CA4 213 [See: Kessler v Gray 77 CA3 284; Granquist v Sandberg 219 CA3 181; DiPalma v Seldman 27 CA4 1499, T/AT 9/94]



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1498 The settlement of an unmarried minor's claim cannot be structured in a way that will prevent one of the minor's parents from receiving a portion of the proceeds in the event of the minor's subsequent death; so an attorney's failure to accomplish this purpose could not have resulted in damage.



SISCO v COSGROVE, MICHELIZZI... (Minor's Settlement) 51 CA4 1302 [See: FamC 6701, 7502; ProbC 6100, 6400, 6402]



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1499 In an action for damage resulting from lung disease caused by exposure to defendant's asbestos products, fault can not be apportioned to tobacco companies that manufactured cigarettes smoked by the plaintiff.



RICHARDS v OWENS-ILLINOIS (Asbestos Tobacco) 14 C4 985 [See: CivC 1431; 1714.45; DaFonte v Up-Right 2 C4 593; Potter v Firestone 6 C4 965, T/AT 2/94]



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1500 Under a contract provision authorizing the award of attorney fees against the unsuccessful party, fees may not be awarded to a defendant following voluntary dismissal by the plaintiff.



RYDER v PETERSON (Agreed Fees) 51 CA4 1056 [See: CivC 1717; CCP 1021; Lerner v Ward 13 CA4 155, T/AT 4/93; Xuereb v Marcus 3 CA4 1338; Moallem v Coldwell 25 CA4 1827; Allstate v Loo 46 CA4 1794, T/AT 8/96; Jue v Patton 33 CA4 456, T/AT 4/94; Hosking v Carrier 50 CA4 1641, T/AT 1/97]



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1501 REVIEW GRANTED A victim of a highway accident has no reasonable expectation of privacy at an accident scene, so the act of videotaping him/her is not an invasion of solitude; details of highway accidents are newsworthy and in the public interest, so a broadcast of the accident scene is not a public disclosure of private facts or an appropriation of the accident victim's identity; a person being transported by helicopter-ambulance has a reasonable expectation of privacy, so the act of videotaping him/her may be an invasion of solitude, and a broadcast of the tape may be a public disclosure of private facts; the work of paramedics in helicopters is newsworthy and in the public interest, so broadcasting videotape of a person being treated in a helicopter-ambulance is not an appropriation of identity.



SHULMAN v GROUP W (Emergency Response) 51 CA4 850 [See: Hill v NCAA 7 C4 1; Miller v NBC 187 CA3 1463; Noble v Sears 33 CA3 654; Carlisle v Fawcett 201 CA2 733; Dora v Frontline 15 CA4 536, T/AT 7/93]



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1502 REVIEW DENIED Officers employed in an unlocked room in a jail do not have a reasonable expectation of privacy; secretly videotaping them is not an invasion of seclusion, does not constitute an unlawful search, and does not violate the statutory prohibition against recording confidential conversations.



SACRAMENTO v SACRAMENTO (Video Camera) 51 CA4 1468 [See: 42 USC 1983; PenC 632; Oliver v US 466 US 170; Katz v US 389 US 347]



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1503 A person may be liable for conversion even though s/he acted reasonably, and in good faith, and was unaware that the chattel over which s/he intentionally exercised dominion was the lawful property of another.



STRASBERG v ODYSSEY (Marilyn Monroe) 51 CA4 906 [See: Harpending v Meyer 55 C 555; Naftzger v American 42 CA4 421, T/AT 3/96; Society v Baker 43 CA4 774, T/AT 4/96]



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1504 REVIEW DENIED Vicarious liability can not be imposed on the basis of joint venture unless the defendant and the tortfeasor were engaged in a joint undertaking with shared control, shared profits, and joint ownership interests; a defendant cannot be vicariously liable for the negligence of the plaintiff's employer if the plaintiff is restricted to workers compensation remedies against the employer.



OROSCO v SUN-DIAMOND (Raisin Elevator) 51 CA4 1659 [See: Privette v Superior Court 5 C4 689, T/AT 9/93; 580 Folsom v Prometheus 223 CA3 1]



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1505 REVIEW GRANTED (SEE # 1689) In a claim for employment discrimination or retaliatory discharge, the employee has the initial burden of establishing a prima facie case of discrimination or retaliation, after which the burden shifts to the employer to articulate a legitimate reason for the employment action, after which the burden shifts to the employee to show that the reason offered by the employer was a pretext for discrimination or retaliation; constructive discharge occurs when the employer intentionally creates or knowingly permits working conditions that are so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign; an employer may be liable for punitive damages for conduct involving oppression, fraud, or malice committed by employees with authority regarding promotions, assignments, affirmative action, and transfers; punitive damages should bear some rational relationship to compensatory damages.



LANE v HUGHES (Race Discrimination) 51 CA4 1601 [See: Heard v Lockheed 44 CA4 1735, T/AT 6/96; Turner v Anheuser 7 C4 1238, T/AT 8/94; Kelly-Zurian v Wohl 22 CA4 397, T/AT 3/94; CivC 3294]



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1506 An action for sexual harassment under FEHA is a tort cause of action; in determining whether such an action resulted in a judgment more favorable than a rejected offer of compromise, the court may properly add to the damages award plaintiff's pre-offer attorney fees and costs.



WILSON v SAFEWAY (Pre-offer Fees) 52 CA4 267 [See: CCP 998; GovC 12900 etseq; Commodore v Superior Court 32 C3 211; Bihun v AT&T 13 CA4 976, T/AT 4/93]



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1507 A trial court was correct in granting summary judgment for defendant in an action for wrongful discharge after the plaintiff admitted that, prior to discharging him for alcohol abuse, the employer made reasonable but unsuccessful attempts to encourage and accommodate a recovery from alcoholism.



GOSVENER v COASTAL (Alcohol Abuse) 51 CA4 805 [See: Fuller v Frank 916 F2 558; Leary v Dalton 58 F3 748; Newland v Dalton 81 F3 904]



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1508 REVIEW DENIED Public employees are absolutely immune from liability for malicious prosecution resulting from proceedings instituted in the scope of their employment, even if the proceedings resulted from misrepresentations that were made with malice.



TUR v CITY OF LA (Helicopter Pilot) 51 CA4 897 [See: GovC 821.6, 818.8, 822.2; Johnson v State 69 C2 782]



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1509 REVIEW DENIED An insurer's agreement to defend and provide independent counsel under a reservation of rights survives arbitration of a fee claim by the independent counsel, and a court may subsequently find that there was no obligation to defend and that the insurer is entitled to reimbursement for fees paid to independent counsel.



TRUCK v SUPERIOR COURT (Surviving Reservation) 51 CA4 985 [See: Handy v First Interstate 13 CA4 917, T/AT 4/93; Truck v Dynamic 9 CA4 1147, T/AT 11/92]



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1510 REVIEW DENIED It is legally impossible to establish a monopoly in a single product; so conduct that interferes with competition in the sale of a single brand, but does not interfere with interbrand competition, does not violate the Cartwright Act.



EXXON v SUPERIOR COURT (Single Brand) 51 CA4 1672 [See: B&PC 16700 etseq; US v DuPont 351 US 377; Corwin v LA Newspaper 4 C3 842]



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1511 If a minor is required to file a malpractice action prior to his/her eighth birthday, but the eighth birthday falls on a Sunday, a filing on the following Monday is timely.



TRAN v FOUNTAIN VALLEY COMM HOSP (Monday's Child) 51 CA4 1464 [See: CCP 340.5, 12a; DeLeon v BART 33 C3 456]



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1512 DISAPPROVED Expert witness declarations, as described by CCP 2034, are not required for treating physicians who are expected to testify only as to their treatment of plaintiff; however, declarations are required when they are asked to provide expert opinions on the standard of care that defendant should have used in treating plaintiff.



PLUNKETT v SPAULDING (Hired Gun) 52 CA4 114 [See: CCP 2034; Hurtado v Western 222 CA3 1198; Brun v Bailey 27 CA4 641, T/AT 9/94; Huntley v Foster 35 CA4 753, T/AT 7/95]



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1513 REVIEW DENIED Full payment of a judgment by one tortfeasor discharges all others who may be liable for the same injury, but where fewer than all of the joint tortfeasors satisfy less than the entire judgment, such partial satisfaction will not relieve the remaining tortfeasors of their obligation under the judgment; so a post-judgment settlement agreement that specifically provided that it constituted full settlement and satisfaction of all claims against all parties but one, preserved the plaintiff's rights against that named party.



EST of McCALL v FOUR STAR (Partial Satisfaction) 51 CA4 1394 [See: CivC 1543; Fletcher v California 99 CA3 97; Winzler v Superior Court 48 CA3 385]



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1514 A plaintiff who requests dismissal without prejudice one day before the scheduled hearing on a summary judgment motion and without having filed any opposition to the motion cannot thereby frustrate the summary judgment statute or deprive the court of power to rule on the motion.



CRAVENS v STATE BOARD OF EQUALIZATION (Unopposed Motion) 52 CA4 253 [See: CCP 581; Hartbrodt v Burke 42 CA4 168, T/AT 3/96]



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1515 On appeal from an order dismissing a case for a failure to diligently prosecute, there can be no review of earlier, non-appealable summary adjudication orders that would otherwise be reviewed on an appeal from a final judgment on the merits.



VERNON v GREAT WESTERN (No Review) 51 CA4 1007 [See: Jacobs v Retail 49 CA3 959; Nye v 20th Century 225 CA3 1041]



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1516 REVIEW DENIED An order under CCP 473 relieving a party of a judgment should not be reversed except for abuse of discretion.



URIARTE v US PIPE (Judgment Relief) 51 CA4 780 [See: CCP 473; Lynch v Spilman 67 C2 251; Shamblin v Brattain 44 C3 474]



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1517 A trial court did not abuse its discretion by disqualifying an attorney who admitted that he had offered to sell out his client and the class which the client was seeking to represent for a $10 million payoff to himself personally.



CAL PAK v UPS (Class Action Sellout) 52 CA4 1 [See: CCP 128(a)(5); In re Complex Asbestos Litigation 232 CA3 572]



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*(T/AT 3/97)

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1518 A landholder may owe persons lawfully on his/her realty a duty to protect against dangerous conditions outside the realty, but located on land over which the landholder exercises control.



ALCARAZ v VECE (Meter Box) 14 C4 1149 [See: Lucas v Murai 15 CA4 1578, T/AT 8/93; Swann v Olivier 22 CA4 1324, T/AT 4/94; Princess v Superior Court 33 CA4 645, T/AT 4/95; Alcaraz v Vece T/AT 12/95]



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1519 REVIEW DENIED / NAME CORRECTED A plaintiff claiming that the negligence of defendant accountants caused the loss of a lawsuit must prove that plaintiff otherwise would have won the suit.



MATTCO v ARTHUR YOUNG (Negligent Accountants) 52 CA4 820 [See: Hastings v Halleck 13 C 203; Campbell v Magana 184 CA2 751; Arciniega v Bank 52 CA4 213, T/AT 2/97; DiPalma v Seldman 27 CA4 1499, T/AT 9/94; Williams v Wraxall 33 CA4 120, T/AT 4/95; BAJI 2.62]



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1520 REVIEW DENIED CCP 377.42 does not prevent enforcement, against decedent's estate, of a judgment for punitive damages entered against the decedent prior to the decedent's death.



WHELAN v EST OF PICK (Post-mortem Puni's) 52 CA4 989 [See: CCP 377.42]



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1521 In an action for injuries resulting from a dangerous condition of playground equipment, defendant is entitled to summary judgment if plaintiff's discovery responses make it clear that plaintiff will not be able to prove that the accident happened on the allegedly defective equipment.



RIO LINDA USD v SUPERIOR COURT (Playground Equipment) 52 CA4 734 [See: CCP 437c; Union Bank v Superior Court 31 CA4 573, T/AT 2/95; Leslie G v Perry 43 CA4 472, T/AT 4/96]



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1522 REVIEW DENIED Filing an improper lien on the proceeds of a tort claim with knowledge that doing so will interfere with the right of the claimant's attorney to collect his/her fee may result in liability for intentional interference with contract; in the absence of a relationship between the parties, a defendant's non-disclosure does not result in liability for fraud, or for negligent interference with economic advantage; in the absence of conduct that is independently wrongful, there is no liability for intentional interference with prospective advantage.



LIMANDRI v JUDKINS (Fee Interference) 52 CA4 326 [See: Heliotis v Schuman 181 CA3 646; PG&E v Bear Stearns 50 C3 1118; Herron v State Farm 56 C2 202; J'Aire v Gregory 24 C3 799; Stolz v Wong 25 CA4 1811, T/AT 7/94; Fifield v Finston 54 C2 632]



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1523 Interference with an unenforceable contract does not result in liability for intentional interference with contract; in the absence of conduct that is independently wrongful, there is no liability for interference with prospective advantage.



BED, BATH... v LA JOLLA (Better Deal) 52 CA4 867 [See: CivC 1091, 1971; CCP 1971; PMC v Saban 45 CA4 579, T/AT 6/96; Della Penna v Toyota 11 C4 376, T/AT 12/95; Chapman v California Mart 2 CA3 846]



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1524 REVIEW GRANTED An employer's good faith belief that one of its supervisors assaulted a subordinate employee on a customer's premises is a sufficient non-discriminatory reason to defeat an action for race discrimination based on termination of the supervisor; if the plaintiff is unable to raise a triable issue of fact concerning the employer's good faith belief, the employer may be entitled to summary judgment.



HICKS v PACIFIC BELL (Supervisory Assault) 52 CA4 692 [See: Lane v Hughes 51 CA4 1601, T/AT 2/97; McDonnell Douglas v Green 411 US 792; USC v Superior Court 222 CA3 1028]



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1525 REVIEW DENIED An arbitration clause in an employment agreement that permitted the employer to litigate certain claims, but required the employee to submit all claims to arbitration, and restricted arbitration remedies to breach of contract damages, with no potential tort liability for fraud, discrimination, or other improper acts by the employer, was unconscionable and unenforceable over the employee's objection.



STIRLEN v SUPERCUTS (Unconscionable Arbitration) 51 CA4 1519 [See: CCP 1670.5; Graham v Scissor-Tail 28 C3 807]



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1526 The constitutional right to privacy of a health worker, whose job description required her to demonstrate vaginal self examination, and who had accepted that job description upon applying for and receiving her employment, was not violated by her employer's requirement that she demonstrate such self examination to female clients and co-workers.



FEMINIST v SUPERIOR COURT (Self Examination) 52 CA4 1234 [See: Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083; CA Const I, 1; Hill v NCAA 7 C4 1]



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1527 REVIEW GRANTED If surreptitiously photographing or videotaping a plaintiff is tortious, it is as an invasion of seclusion, for which liability can not be imposed unless plaintiff had an objectively reasonable expectation of privacy in the circumstances; there is no sub-tort known as violation of the right to be free of photographic invasion.



SANDERS v ABC (Tele Psychic) 52 CA4 543 [See: Hill v NCAA 7 C4 1; Sacramento v Sacramento 51 CA4 1468, T/AT 2/97; Shulman v Group W 51 CA4 850, T/AT 2/97]



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1528 REVIEW DENIED When a judgment against a corporation was reversed, an alter-ego action against one of its principles became moot, and voluntary dismissal of the alter-ego action did not constitute a final termination on the merits in favor of the defendant sufficient to justify a malicious prosecution action.



ROBBINS v BLECHER (Alter-Ego) 52 CA4 886 [See: Eells v Rosenblum 36 CA4 1848, T/AT 9/95]



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1529 REVIEW DENIED The anti-SLAPP statute applies to any exercise of the right of free expression concerning a public issue; anything that is the subject of a judicial, administrative, or other official proceeding, including a State audit of a public agency, is a public issue.



BRAUN v CHRONICLE (State Audit) 52 CA4 1036 [See: CCP 425.16; CivC 47(d); Zhao v Wong 48 CA4 1114, T/AT 9/96; Hayward v Watsonville 265 CA2 255]



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1530 The section of the Uniform Aircraft Financial Responsibility Act requiring that cancellation of an aircraft liability insurance policy be reported to the PUC 30 days before it becomes effective does not apply to coverage that is not mandatory under the statute.



ESCOBEDO v EST OF SNIDER (Endless Policy) 14 C4 1214 [See: PUC 24230 etseq, 24361; Transamerica v Tab 12 C4 389, T/AT 2/96 Escobedo v Est of Snider T/AT 4/96]



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1531 An insurer that has paid its insured for a loss may have a right of equitable subrogation against a third party who is contractually liable to the insured for the loss.



FIREMAN'S FUND v WILSHIRE (Stolen Equipment) 52 CA4 553 [See: Patent Scaffolding v William Simpson 256 CA2 506; Meyers v Bank 11 C2 92]



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1532 REVIEW GRANTED / REVIEW DISMISSED The Workers Compensation Appeals Board has exclusive jurisdiction over claims against medical clinics alleged to be participating in fraudulent workers compensation claims.



AMERICAN INTERNATIONAL v CRAWFORD (Fraudulent WC) 51 CA4 1489 [See: LabC 3820; Marsh v Superior Court 49 C3 1; Mitchell v Scott 227 CA3 1474]



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1533 The two year statute of limitations established by CivC 2079 applies only to actions for violation of a duty created by that section, and does not apply to actions for fraud against a real estate licensee based on the claim that s/he actively concealed a crack in the foundation of a house.



WILLIAMS v WELLS & BENNETT (Cracked Slab) 52 CA4 857 [See: CivC 2079; Loken v Century 21 36 CA4 263, T/AT 8/95]



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1534 REVIEW DENIED When a party brings a timely post-trial motion, the trial court has broad discretion to determine the relief being requested, and if one of the grounds urged by the moving party justifies an order for a new trial on the issue of damages, the court has jurisdiction to make such an order, even though the moving party did not request that particular relief.



SHAPIRO v PRUDENTIAL (New Trial) 52 CA4 722 [See: CCP 657; West v Duncan 205 CA2 140; Neal v Montgomery 7 CA4 1194, T/AT 9/92]



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1535 REVIEW DENIED The New Motor Vehicle Board does not have any jurisdiction over a car dealer's claim that the manufacturer did not allocate a fair share of vehicles to the dealer because of the dealer's refusal to pay kickbacks.



HARDIN v NEW MOTOR VEHICLE BOARD (No Jurisdiction) 52 CA4 585 [See: VehC 3050; Miller v Superior Court 50 CA4 1665, T/AT 1/97; Yamaha v Superior Court 185 CA3 1232]



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1536 After entry of an order sealing all or part of the record in a civil proceeding, members of the public, who were not parties to the proceeding at the time the order was entered, may challenge the continued need for the order.



WILSON v SCIENCE APPLICATIONS (Sealed Record) 52 CA4 1025 [See: Hinshaw v Superior Court 51 CA4 233, T/AT 1/97; Mary R v B&R 149 CA3 308; Champion v Superior Court 201 CA3 777; Church v Armstrong 232 CA3 1060]



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1537 In a good faith settlement determination under CCP 877.6, the allocation of settlement proceeds to each of the various kinds of damages claimed should bear a relationship to the fraction that each kind of damage is of the total claim.



RUDD v SUPERIOR COURT (Settlement Allocation) 52 CA4 742 [See: CCP 877.6; Tech-Bilt v Woodward-Clyde 38 C3 488; Erreca's v Superior Court 19 CA4 1475, T/AT 1/94; Regan Roofing v Superior Court 21 CA4 1685, T/AT 3/94; Alcal v Superior Court 8 CA4 1121, T/AT 10/92]



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1538 CCP 473, which provides for mandatory relief from dismissal resulting from attorney mistake, neglect or inadvertence, does not apply to a voluntary dismissal pursuant to a settlement agreement that was entered into as a result of a mathematical miscalculation by plaintiff's attorney.



HUENS v TATUM (Attorney's Miscalculation) 52 CA4 259 [See: CCP 473; Peltier v McCloud 34 CA4 1809, T/AT 6/95]



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1539 Under CCP 1038, a trial court that has assessed costs against a party for bringing a proceeding for indemnity or contribution without good faith or reasonable cause may make a supplemental assessment for costs incurred in connection with an unsuccessful, although not frivolous, appeal.



GONZALES v ABC (Appeal Fees) 52 CA4 391 [See: CCP 1038; Morcos v Board 51 C3 924]



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1540 A health care practitioner may not refuse to comply with a valid request by the patient to inspect and copy the patient's records until the patient or the patient's attorney signs a lien.



PERSON v FARMERS (Patient's Records) 52 CA4 813 [See: H&SC 123100 etseq]



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*(T/AT 4/97)

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1541 REVIEW DENIED In the trial of a medical malpractice action based on the doctrine of informed consent, the jury should not be required to rely entirely on the testimony of expert witnesses; failure to give a patient information as required by the Health & Safety Code regarding experimental and investigational medical devices may result in a presumption of negligence (i.e., negligence per se).



DAUM v SPINECARE (Spinal Fixation) 52 CA4 1285 [See: Cobbs v Grant 8 C3 229; Spann v Irwin 34 CA4 644, T/AT 6/95; H&SC 26678, 26679, recod as 111590, 11159521; CFR 50.25(a)(1); EvC 669; DiRosa v Showa Denko 44 CA4 799, T/AT 5/96]



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1542 REVIEW DENIED A plaintiff suing an attorney for malpractice in defending the plaintiff against criminal charges must prove that s/he was innocent of the charges; to meet this burden, plaintiff must establish that no reasonable person would have entertained a sincere suspicion of guilt.



TIBOR v SUPERIOR COURT (Innocent Plaintiff) 52 CA4 1359 [See: Mattco v Arthur Young 52 CA4 820, T/AT 3/97; Schultz v Harney 27 CA4 1611, T/AT 10/94; Glenn v Aiken 409 Mass. 699; Morgano v Smith 110 Nev 1025]



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1543 REVIEW DENIED An insurer that wrongfully refuses to defend its insured may be liable for the entire amount of a default judgment that results from the insured's inability to defend.



AMATO v MERCURY (Default Damages) 53 CA4 825 [See: CivC 3333; Campbell v Superior Court 44 CA4 1308, mod 45 CA4 1232a, T/AT 6/96; Amato v Mercury 18 CA4 1784, T/AT 12/93; Amato v Mercury T/AT 1/97; Mattco v Arthur Young 52 CA4 820, T/AT 3/97; Travelers v Lesher 187 CA3 169]



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1544 A person driving a rental car in violation of a provision in the rental contract permitting only the renter to drive was not driving with the rental company's permission, and the rental company was not vicariously liable for his negligence.



MARQUEZ v ENTERPRISE RENT-A-CAR (No Others) 52 CA4 319 [See: VehC 17150; Hartford v Abdullah 94 CA3 81; Elkinton v Cal State 173 CA2 338]



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1545 REVIEW DENIED A medical payments insurer with a right to reimbursement from the proceeds of the insured's third party action does not have sufficient possessory right in those proceeds to maintain an action for conversion against the insured's attorney, who, knowing of the insurer's interest, disbursed the proceeds without paying the insurer.



FARMERS INS v ZERIN (Med Pay Reimbursement) 53 CA4 445 [See: Oakdale v Fong 43 CA4 539, T/AT 4/96; Weiss v Marcus 51 CA3 590]



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1546 For workers' compensation benefits paid to an injured employee, an employer or its insurer has a lien against the proceeds of any third party action brought by the employee against persons responsible for the injury, and a credit against future workers' compensation benefits claimed by the employee, which credit applies to any future workers' compensation awards before payment of the employee's attorney.



SCIF v WCAB (WC Credit) 53 CA4 579 [See: LabC 3856(b); SCIF v WCAB (Brown) 130 CA3 933]



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1547 A hospital's statutory lien under CivC 3045 applies to no more than 50% of the patient's recovery against third persons, even if payment is not made at the time the proceeds are disbursed.



MERCY HOSPITAL v FARMERS (Unpaid Lien) 53 CA4 213 [See: CivC 3045.1, 3045.2, 3045.3, 3045.4; City v Sweet 12 C4 105, T/AT 1/96]



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1548 REVIEW GRANTED Even though no statute specifically prohibits the sale of airplane parts known to be defective, terminating an employee for protesting an employer's practice of doing so sufficiently violated the spirit of an existing system of aircraft safety laws and regulations to be the basis of a tort action for termination in violation of public policy.



GREEN v RALEE (Defective Parts) 52 CA4 1534 [See: Gantt v Sentry 1 C4 1083; Foley v Interactive 47 C3 654]



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1549 An employee who, under protest, played a small role in his employer's criminal activity and was terminated for refusing to continue doing so, is not prevented by the "in pari delicto" doctrine from maintaining an action for wrongful termination in violation of public policy.



JACOBS v UNIVERSAL DEVELOPMENT (Rebate) 53 CA4 120 [See: Tameny v ARCO 27 C3 167; Norwood v Judd 93 CA2 276; Weinbaum v Goldfarb... 46 CA4 1310, T/AT 8/96]



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1550 Attorney fees should not be awarded to an employer following the dismissal, on jurisdictional grounds, of a former employee's FEHA claim.



HON v MARSHALL (Buddhist Discrimination) 53 CA4 470 [See: GovC 12965(b); CCP 128.5, 128.7]



------------



1551 REVIEW DENIED Damages sustained by a wrongfully terminated employee consist of what the employee would have earned if not terminated, minus disability benefits received from the state for a disability that began after the termination.



MAYER v MULTISTATE LEGAL STUDIES (Employment Disability) 52 CA4 1428 [See: Smith v Brown-Forman 196 CA3 503; Parker v Twentieth 3 C3 176]



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1552 REVIEW DENIED The presumption that employment is at will if not for a specified term can be rebutted by proof of an implied agreement not to terminate except for cause, which can be established by evidence regarding the personnel policies or practices of the employer, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.



ALEXANDER v NEXTEL (At-will Presumption) 52 CA4 1376 [See: LabC 2922; Camp v Jeffer 35 CA4 620, T/AT 7/95; Haycock v Hughes 22 CA4 1473, T/AT 4/94]



------------



1553 REVIEW GRANTED / TRANSF TO COURT OF APPEAL An employee terminated because of disability resulting from job-related injuries is restricted to workers' compensation remedies.



ANDREACCHI v PRICE COMPANY (Job-related Disability) 53 CA4 646 [See: Cammack v GTE, T/AT 9/96; City of Moorpark v Superior Court, T/AT 11/96; Angell v Peterson 21 CA4 981, T/AT 3/4; Langridge v Oakland USD 25 CA4 664, T/AT 7/94; Adkins v State 50 CA4 1802, T/AT 1/97]



------------



1554 DEPUBLISHED A judicial determination regarding the relationship between alleged employer and employee is res judicata, binding on the Workers' Compensation Appeals Board.



READY v WCAB (WC Res Judicata) 53 CA4 147 [See: Rymer v Hagler 211 CA3 1171; Torrey Pines Bank v Superior Court 216 CA3 813]



------------



1555 Except for non-payment of premium, a life insurance policy issued to an insured who lied about his health and sent an impostor to take the medical examination is incontestable by the insurer two years after it takes effect.



AMEX LIFE v SUPERIOR COURT (Impostor) 14 C4 1231 [See: InsC10113.5; Dibble v Reliance 170 C 199; Maslin v Columbian 3 FS 368; Ludwinska v John Hancock 178 A 28; United v Emert 49 CA4 941, T/AT 11/96; Cleary v AA 111 CA3 443; Mariscal v Old Republic 42 CA4 1617, T/AT 4/96]



------------



1556 DEPUBLISHED Statements made in exercise of the constitutional right of petition are privileged from defamation liability, unless the person who made them knew that they were false or entertained subjective doubts as to their truth (i.e., acted with malice).



LUCAS v SWANSON & DOWDALL (Rent Control) 53 CA4 98 [See: Sheldon Appel v Albert 47 C3 863; Eastern R v Noerr 365 US 127; Mine Workers v Pennington 381 US 657; McDonald v Smith 472 US 479; NY Times v Sullivan 376 US 254; Bose v Consumers Union 466 US 485]



------------



1557 REVIEW DENIED The litigation privilege created by CivC 47 does not protect fraudulent statements made during the course of settlement negotiations, unless a proceeding designed to obtain access to the courts for the purpose of resolving the dispute exists or actually has been proposed, orally or in writing, in good faith, and is imminent.



EDWARDS v CENTEX (Fraudulent Negotiations) 53 CA4 15 [See: Silberg v Anderson 50 C3 205; Wilton v Mt Wood 18 CA4 565, T/AT 11/93; Hunsucker v Sunnyvale 23 CA4 1498, T/AT 5/94]



------------



1558 In an action by a plaintiff who was injured while recreationally climbing an electrical tower, if the owner of the tower moves for summary judgment on the ground of statutory immunity against liability to persons entering realty for recreational purposes, defendant has the initial burden of showing lack of malice; this burden may be satisfied by evidence of efforts made to prevent the injury, whereupon the burden shifts to the plaintiff to raise a triable issue of malice, which burden cannot be satisfied by evidence of mere neglect.



BACON v SO CAL EDISON (Electrical Tower) 53 CA4 854 [See: CivC 846; Lopez v Superior Court 45 CA4 705, T/AT 6/96; Ornelas v Randolph 4 C4 1095, T/AT 5/93]



------------



1559 REVIEW DENIED A personal injury clause in a liability policy did not require the carrier to defend the insured in an action for disparagement of title.



TRUCK v BENNETT (Disparagement Coverage) 53 CA4 75 [See: Hill v Allan 259 CA2 470; Stalberg v Western 27 CA4 925, T/AT 9/94; Wilton v Mountain Wood 18 CA4 565; Bank of the West v Superior Court 2 C4 1254, T/AT 9/92]



------------



1560 REVIEW DENIED A personal injury clause in a liability policy did not require the carrier to defend the insured in an action for negligent breach of contract, if the duty that the insured allegedly failed to perform arose entirely from contract.



WILMINGTON v SOMERSET (Negligent Br/K) 53 CA4 186 [See: AIU v Superior Court 51 C3 807; Bernstein v Consolidated 37 CA4 763]



------------



1561 An insurer that paid, under a valid homeowner policy, a loss for which it might successfully have denied coverage, but which, at first glance was within the coverage of the policy, was not a mere volunteer and may be subrogated to the insured's rights against a third party tortfeasor responsible for the loss.



STATE FARM v EAST BAY MUD (No Volunteer) 53 CA4 769 [See: Fireman's Fund v Maryland Casualty 21 CA4 1586]



------------



1562 REVIEW DENIED Federal law does not pre-empt a state anti-trust action against cable TV operators under the Cartwright Act.



MORRISON v VIACOM (Cable TV) 52 CA4 1514 [See: B&PC 16720, 16727; 47 USCA 540 etseq, 521 etseq]



------------



1563 An offer of compromise directed to several defendants and conditioned on acceptance by all of them does not satisfy the requirements of CCP 998 and cannot result in a judgment for enhanced costs under that section.



WICKWARE v TANNER (Conditional Offer) 53 CA4 570 [See: CCP 998; Hutchins v Waters 51 CA3 69; Santantonio v Westinghouse 25 CA4 102, T/AT 6/94; Steinfeld v Foote-Goldman 50 CA4 1542, T/AT 1/97]



------------



1564 Voluntary dismissal of remaining causes of action without prejudice and pursuant to an agreement waiving applicable time bars does not make an order granting summary adjudication appealable.



DON JOSE'S v TRUCK (Artifice) 53 CA4 115 [See: Tenhet v Boswell 18 C3 150]



------------



1565 REVIEW DENIED The vexatious litigant statute does not result in an unconstitutional interference with due process or the right of petition.



WOLFGRAM v WELLS FARGO (Vexatious Litigant) 53 CA4 43 [See: CCP 391 etseq]



------------



1566 REVIEW GRANTED The California MCLE statute is unconstitutional, because there is no rational basis for exempting retired judges, elected officials, law professors, or state employees from its provisions, even when they are in active practice.



WARDEN v STATE BAR (MCLE) 53 CA4 510 [See: B&PC 6070; Spevack v Klein 385 US 511; Barnard v Thorstenn 489 US 546; Raffaelli v CBE 7 C3 288]



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--------------------

*(T/AT 5/97)

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1567 The firefighter's rule bars recovery for failure to provide adequate security against a landlord by an off duty peace officer injured in a confrontation with a suspected burglar in the apartment building where the officer resides.



HODGES v YARIAN (Off Duty Deputy) 53 CA4 973 [See: Giorgi v PG&E 266 CA2 355; Neighbarger v Irwin 8 C4 532, T/AT 11/94; Donohue v SFHA 16 CA4 658, T/AT 8/93; Seibert v Superior Court 18 CA4 394, T/AT 11/93]



------------



1568 DEPUBLISHED To recover under the bystander theory for emotional distress experienced upon witnessing an injury to a family member, it is not necessary for the plaintiff to visually observe the occurrence of the accident, so long as it is perceived with other senses.



CHEN v SUPERIOR COURT (Deadly Crash) 54 CA4 168 [See: Dillon v Legg 68 C2 728; Ochoa v Superior Court 39 C3 159; Thing v LaChusa 48 C3 644; Zuniga v Housing Auth 41 CA4 82, T/AT 1/96; Ortiz v HPM 234 CA3 178]



------------



1569 Strict products liability cannot be applied to damage to the defective product itself if the damage and the defect are identical; damage to a sink consisting of chipping enamel, which was caused by a defect that made the enamel likely to chip was identical to the defect and not subject to strict products liability.



FIELDSTONE v BRIGGS (Kitchen Sink) 54 CA4 357 [See: Greenman v Yuba 59 C2 57; Seely v White 63 C2 9; Sacramento RTD v Grumman 158 CA3 289; Gherna v Ford 246 CA2 639; International Knights v Ball 110 CA3 1001; CommC 2607]



------------



1570 When a statutory notice of intention to sue for medical malpractice is served during the last 90 days of the three year outside limit period of limitations, the period is extended by 90 days.



NEWMAN v BURNETT (Outside Limit) 53 CA4 1032 [See: CCP 340.5, 364; Woods v Young 53 C3 315; Russell v Stanford T/AT 6/96 review granted]



------------



1571 REVIEW GRANTED / TRANSF TO CT OF APP Attorney malpractice allegedly consisting of negligently drawing incorporation documents so that incorporators could be ousted from control did not cause actual damage, and the statute of limitations did not begin running, until the final decision in a proceeding brought to determine the validity of the election that resulted in the ouster.



BARKHORDARIAN v COOLEY, GODWARD ... (Ousted Incorporators) 54 CA4 155 [See: CorpC 709; Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; International v Feddersen 9 C4 606, T/AT 4/95; Adams v Paul 11 C4 583, T/AT 12/95]



------------



1572 DEPUBLISHED A client who committed misconduct in litigation may be barred by the doctrine of unclean hands from recovering for attorney malpractice allegedly consisting of negligence in handling the litigation.



BIO-PSYCHIATRIC-TOXICOLOGY v RADCLIFF & WEST (Unclean Hands) 54 CA4 599 [See: Fibreboard v East Bay 227 CA2 675; Unilogic v Burroughs 10 CA4 612; Kahn v Pelissetti 260 CA2 832; Thibodeau v Crum 4 CA4 749; Moriarty v Carlson 184 CA2 51]



------------



1573 A client's bargained-for promise in a side business transaction with the client's attorney should not be enforced, unless the attorney fulfilled the ethical obligation of advising the client to consult with independent counsel before entering into the transaction.



PASSANTE v McWILLIAM (Baseball Cards) 53 CA4 1240 [See: Leonard v Gallagher 235 CA2 362; CA Rules Prof Cond 3-300; Dow v River 110 CA2 403]



------------



1574 REVIEW DENIED An arbitration clause in an attorney's retainer agreement did not apply to a side business transaction between the attorney and client.



MAYHEW v BENNINGHOFF (Infinite Arbitration Clause) 53 CA4 1365 [See: CCP 1281.2; R/ Prof Cond 3-300; Beery v State Bar 43 C3 802; Lawrence v Walzer 207 CA3 1501]



------------



1575 REVIEW DENIED Communications made to attorneys and fellow employees by a person serving as liaison between them might be subject to the attorney-client privilege, but the privilege does not prevent discovery of matters of which the liaison person has personal knowledge, merely because they are referenced in those communications; the attorney-client privilege does not apply to communications with an attorney who was retained to help the client commit fraud or to defraud the court.



STATE FARM v SUPERIOR COURT (Fraud Exception) 54 CA4 625 [See: BP Alaska v Superior Court 199 CA3 1240; Aerojet-General v Transport 18 CA4 996, T/AT 11/93]



------------



1576 REVIEW GRANTED Under a contract provision authorizing the award of attorney fees against an unsuccessful party, fees may not be awarded to a defendant following voluntary dismissal by the plaintiff; a trial court lacks jurisdiction to modify a voluntary dismissal without prejudice by entering a dismissal with prejudice.



LA GALLERIA v WELLS FARGO (Agreed Fees) 53 CA4 987 [See: CivC 1717; Jue v Patton 33 CA4 456, T/AT 4/95; Ryder Peterson 51 CA4 1056, T/AT 2/97; Santisas v Goodin T/AT 11/95 rev grtd]



------------



1577 Design immunity, as created by GovC 830.6, should be applied if there is substantial evidence that the design could have been adopted by a reasonable legislative body, in spite of other evidence to the contrary.



HIGGINS v STATE (Highway Median) 54 CA4 177 [See: GovC 835, 830.6; Uyeno v State 234 CA3 1371; Ramirez v City 192 CA3 515; Compton v City 12 CA4 591, T/AT 3/93; BART v Superior Court 46 CA4 476, T/AT 7/96]



------------



1578 REVIEW GRANTED / REVIEW DISMISSED A commercial surety may be liable for bad faith; an award of punitive damages nine times the amount of actual damage was held to be excessive and was reduced to an award five times the amount of actual damage.



CATES v TALBOT (Dilatory Fumbling) 53 CA4 1420 [See: Comunale v Traders 50 C2 654; Crisci v Security 66 C2 425; Foley v Interactive 47 C3 654; Neal v Farmer's 21 C3 910; Adams v Murakami 54 C3 105; Pac Mut v Haslip 499 US 1]



------------



1579 REVIEW DENIED An action against a workers' compensation carrier for bad faith in failing to defend a workers' compensation claim is not within the exclusive jurisdiction of the Workers' Compensation Appeals Board and can be heard by a trial court.



SALIMI v SCIF (WC Bad Faith) 54 CA4 216 [See: USF&G v Superior Court 214 C 468; Lance v Republic 44 CA4 194, T/AT 5/96; Tricor v SCIF 30 CA4 230, T/AT 12/94]

------------



1580 In an action against an insurance carrier for bad faith, breach of contract, and declaratory relief, the carrier's claims manual is discoverable.



GLENFED v SUPERIOR COURT (Claims Manual) 53 CA4 1113 [See: CCP 2017(a); InsC 790.03(h)(3); Lipton v Superior Court 48 CA4 1599, T/AT 9/96]

------------



1581 REVIEW GRANTED An exception to an exclusion in an insurance policy is part of the policy's coverage provisions, and the burden of proving the applicability of the exception is on the insured.



AYDIN v FIRST STATE (Exclusion Exception) 54 CA4 416 [See: Haskel v Superior Court 33 CA4 963, T/AT 4/95]



------------



1582 NAME CORRECTED / REVIEW DENIED An insurer is not barred from asserting the defense of collusion simply because, despite notice, it failed to attend a prove-up hearing.



ANDRADE v JENNINGS (Collusive Settlement) 54 CA4 307 [See: Pruyn v Agricultural 36 CA4 500, T/AT 8/95]



------------



1583 Under an automobile liability policy that excluded claims by an insured person and defined "insured person" as any person legally responsible for the vehicle, a carrier was not obligated to defend an action by one of the owners of the insured vehicle; an amendment to the InsC, eliminating the "legally responsible" language from the definition of "insured," should not be applied retroactively.



HITCHCOCK v MERCURY (Legally Responsible) 54 CA4 303 [See: InsC 11580.1(b)(4)]



------------



1584 REVIEW DENIED An employer who knows that the disability of an employee makes the employee unfit for his/her job has an affirmative duty to inform the employee of other suitable job opportunities with the employer and to consider the employee for those positions; an employer was justified, however, in terminating an employee who was so disabled by AIDS that he did not qualify for any position with the employer.



PRILLIMAN v UNITED (Disabled Employee) 53 CA4 935 [See: Raytheon v CA FEHC 212 CA3 1242; GovC 12926(k); Sargent v Litton 841 FS 956]



------------



1585 REVIEW GRANTED If an employer pays workers' compensation benefits to an employee injured on the job and then participates actively in the employee's action against third parties responsible for the injury, in addition to the lien for workers' compensation benefits, the trial court may properly direct payment of the employer's attorney fees from the proceeds of the settlement of the third party action.



SUMMERS v NEWMAN (Employer's Fees) 53 CA4 1513 [See: LabC 3852-3860; CCP 1021; Kindt v Otis 32 CA4 452, T/AT 3/95]

------------



1586 REVIEW DENIED Parties to civil litigation are not entitled to a jury trial on the affirmative defense of res judicata; the issue of res judicata can be tried separately to the court.



WINDSOR v CITATION (Res Judicata Bifurcation) 54 CA4 547 [See: CCP 597; Rohrbasser v Lederer 179 CA3 290]

------------



1587 REVIEW DENIED A municipal court's order denying a motion to transfer a case to the superior court when that motion is made on the ground that the damages at issue exceed the municipal court's jurisdiction may be reviewed by the appellate department on appeal from a final, appealable judgment.



ASH v HERTZ (Jurisdictional Amount) 53 CA4 1107 [See: CCP 396; Cal Emp v Municipal Ct 62 CA2 781; Abelleira v District Court 17 C2 280; Yousafzai v Hyundai 22 CA4 920]



------------



1588 When a Superior Court grants summary adjudication as to some of a plaintiff's claims and transfers the surviving claims to Municipal Court, plaintiff may seek writ review of the transfer order and the order of summary adjudication, but may not appeal until the Superior Court has entered a final judgment as to the summarily adjudicated claims.



ECKHART v GENUINE PARTS (Summary Adjudication Review) 53 CA4 1340 [See: CCP 904.1; Uptain v Duarte 206 CA3 1258]



------------



1589 Voluntary dismissal without prejudice of causes of action remaining after others have been summarily adjudicated does not make the order granting summary adjudication appealable.

JACKSON v WELLS FARGO (Artifice) 54 CA4 240 [See: Don Jose's v Truck 53 CA4 115, T/AT 4/97]



------------



1590 A trial court is within its discretion in refusing to grant a continuance requested by stipulation of all parties, but when scheduling problems occur, opposing lawyers should try to accommodate each other as a matter of professional courtesy, and, if possible, the courts should not throw up a roadblock to that courtesy.



PHAM v NGUYEN (Professional Courtesy) 54 CA4 11 [See: CCP 595.2; Lorraine v McComb 220 C 753; County v Doria 72 CA3 776]



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--------------------

*(T/AT 6/97)

--------------------

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1591 REVIEW DENIED A gas company does not have a duty to determine whether a customer's water heater is properly elevated, or to take action if it is not.



SALAZAR v SO CAL GAS CO (Unelevated Water Heater) 54 CA4 1370 [See: Rowland v Christian 69 C2 108; Ambriz v Petrolane 49 C2 470]



------------



1592 DEPUBLISHED Once it has taken charge of a hostage situation to the exclusion of all other persons, a police department owes the mother of hostages a duty to act reasonably.



SOUZA v CITY OF ANTIOCH (Hostage Situation) 54 CA4 1009 [See: Riss v NY 22 NYS2 897; Wright v City 219 CA3 318; Wallace v City 12 CA4 1385, T/AT 4/93; Williams v State 34 C3 18; McCorkle v City 70 C2 252; Mann v State 70 CA3 773; Whitcombe v County 73 CA3 698; GovC 820.2; Johnson v State 69 C2 782; Thing v La Chusa 48 C3 644; Chen v Superior Court 54 CA4 168, T/AT 5/97]



------------



1593 REVIEW DENIED A real estate agent has neither a statutory nor a common law duty to determine whether there exists any pending litigation that might affect the subject realty.



PADGETT v PHARISS (Pending Litigation) 54 CA4 1270 [See: CivC 2079 etseq; Carleton v Tortosa 14 CA4 745; Wilson v Century21 15 CA4 298, T/AT 7/93]



------------



1594 REVIEW DENIED InsC 1763, requiring insurance brokers to make a "diligent search" before procuring a policy from a non-admitted carrier, does not create a civil cause of action for its violation.



CRUSADER v SCOTTSDALE (Non-admitted Carriers) 54 CA4 121 [See: InsC 1763; CCP 1858; REST (2d) Torts 874A; Middlesex v Mann 124 CA3 558; Moradi-Shalal v Fireman's 46 C3 287]



------------



1595 Under the doctrine of primary assumption of the risk, golfers do not owe a duty to act reasonably to avoid hitting other golfers with driven balls.



DILGER v MOYLES (Errant Golf Ball) 54 CA4 1452 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Morgan v Fuji 36 CA4 127, T/AT 5/95]



------------



1596 A person lawfully operating a machine has no duty to refrain from making normal sounds associated with its operation to avoid frightening horses.



PARSONS v CROWN DISPOSAL (Noisy Garbage Truck) 15 C4 456 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Stanton v Louisville 8 So 798; People's v Hazel 18 A 1116; Nason v West 65 NYS 651; Simonds v Maine 72 A 175]



------------



1597 NAME CORRECTED A document releasing the YMCA from potential liability for negligence and required by the YMCA of people using its facilities did not violate public policy and was enforceable.



YMCA v SUPERIOR COURT (Senior Center) <Originally Los Angeles v Superior Court> 55 CA4 22 [See: Tunkl v Regents 60 C2 92; Randas v YMCA 17 CA4 158]



------------



1598 NAME CORRECTED An attorney's negligent failure to obtain the signature of a client's wife while she was competent and willing to sign a document acknowledging that certain property of her husband's was not community property resulted in actual damage when the spouse's children commenced an action to establish their mother's community property rights in the property.



SINDELL v GIBSON, DUNN & CRUTCHER (Omitted Consent) 54 CA4 1457 [See: CCP 340.6; Budd v Nixen 6 C3 195; Laird v Blacker 2 C4 606; ITT v Niles 9 C4 245, T/AT 2/95; Adams v Paul 11 C4 583, T/AT 12/95]



------------



1599 An attorney may ethically, and without being required to advise the client to consult independent counsel before signing it, include in an initial retainer agreement a provision requiring the arbitration of legal malpractice claims



POWERS v DICKSON, CARLSON... (Malpractice Arbitration) 54 CA4 1102 [See: Moncharsh v Heily 3 C4 1; Lawrence v Walzer 207 CA3 1501; Federico v Frick 3 CA3 872]



------------



1600 REVIEW DENIED A child who was adopted while her natural parent was alive and who never lived with the natural parent has no right to sue for the wrongful death of the natural parent.



PHRANER v COTE MARK (Adopted Child) 55 CA4 166 [See: CCP 377.60; ProbC 6451; Desplancke v Wilson 14 CA4 631, T/AT 5/93; Marks v Lyerla 1 CA4 556]



------------



1601 REVIEW DENIED A product may be defective for lack of warning, even though it did not fail and was not damaged in the accident that injured its user.



WRIGHT v STANG (Water Cannon) 54 CA4 1218 [See: Brown v Superior Court 44 C3 1049; Sparks v Owens 32 CA4 461, at 3/95; Anderson v Owens 53 C3 987; Huynh v Ingersoll-Rand 16 CA4 825, T/AT 8/93]

------------



1602 DEPUBLISHED Prop 51 does not apply to strict liability, because it is imposed without regard to fault.



MORENO v S.H. KRESS & CO (Exploding Caps) 54 CA4 782 [See: CivC 1431; Miller v Stouffer 9 CA4 70, T/AT 11/92; Rashtian v BRAC-BH 9 CA4 1847, T/AT 12/92; Srithong v Total 23 CA4 721, T/AT 4/94]



------------



1603 Strict liability may be imposed for defects in mass produced homes; an instruction defining mass production in terms of "a substantial number" was correct.



FLECK v BOLLINGER (Little Boxes) 54 CA4 926 [See: Kriegler v Eichler 269 CA2 224; Oliver v Superior Court 211 CA3 86]



------------



1604 REVIEW DENIED A mass producer of building lots may be strictly liable for defects in a lot that existed when it was transferred to the builder, but is not strictly liable for defects brought about by the builder subsequent to the transfer.



BLACKHAWK v GOTHAM INS (Defective Realty) 54 CA4 1090 [See: Avner v Longridge 272 CA2 607; GEM v Hallcraft 213 CA3 419]



------------



1605 If the manufacturer of a medical device violates a federal requirement, pre-emption does not prevent a state award of damages on a tort claim based on violation of a state requirement equal to, or substantially identical to, the federal requirement.



STEELE v COLLAGEN (Collagen Pre-emption) 54 CA4 1474 [See: Cipollone v Liggett 505 US 504; Armstrong v Optical 50 CA4 580, T/AT 12/96; Medtronic v Lohr 135 LEd2 700]



------------



1606 REVIEW DENIED The appropriate forum for arguing that due process was violated in a criminal proceeding is the proceeding itself, and such a claim will not be entertained in a subsequent action under the federal Civil Rights Act.



HIGGINBOTHAM v KING (Pre-trial Publicity) 54 CA4 1040 [See: 42 USC 1983; Buckley v Fitzsimmons 20 F3 789; Union Bank v Superior Court 31 CA4 573, T/AT 2/95; Teitelbaum v Dominion 58 C2 601; Paul v Davis 424 US 693]

------------



1607 REVIEW DENIED The attorney fee provisions of the federal Civil Rights Act do not pre-empt a state claim for malicious prosecution by a person who was unsuccessfully sued under the Civil Rights Act.



DEL RIO v JETTON (Malicious Prosecution 1983) 55 CA4 30 [See: 42 USC 1983, 1988; Medtronic v Lohr 135 LEd2 700; East-Bibb v Macon-Bibb 674 FS 1475; California v ARC 490 US 93]



------------



1608 REVIEW DENIED A physician supervising the artificial insemination of a woman by a donor not her husband has no duty to the resulting child to assure that s/he will have two legal parents.



ALEXANDRIA S v PACIFIC FERTILITY MEDICAL CENTER (Artificial Insemination) 55 CA4 110 [See: FamC 7613; People v Sorensen 68 C2 280; Kerns v Schmidt 94 Ohio App3 601]



------------



1609 A compensatory damages award of $2 million was not excessive in the case of a 47 year old plaintiff whose arm was shattered into 60 pieces, resulting in a permanent disability and necessitating 5 surgeries, with economic losses of $500,000.



FONTAINE v NATIONAL RAILROAD (AMTRAK) 54 CA4 1519 [See: 45 USC 51, 23; Oglesby v So Pac 6 F3 603; King v So Pac 855 F2 1485]



------------



1610 REVIEW GRANTED The doctrine of comparative negligence does not apply to insurance bad faith claims; a carrier that, in bad faith, failed to settle a claim against its insured within policy limits, causing a judgment against the insured, in Wisconsin, for compensatory and punitive damages in excess of the policy limits, may be liable, in a California court, for the entire amount of the judgment, including the punitive damages portion.



KRANSCO v AMERICAN EMPIRE (Slip 'N Slide) 54 CA4 1171 [See: Comunale v Traders 50 C2 654; Foley v Interactive 47 C3 654; Peterson v Superior Court 31 C3 147; PPG v Transamerica T/AT 11/96 (Review Granted); Brown v Guarantee 155 CA2 679]



------------



1611 REVIEW DENIED In an insurance bad faith action, once the insured has validated a claim for emotional distress by proving that the carrier's bad faith led to an economic loss, the insured may recover for all emotional distress resulting from the bad faith, regardless of whether it resulted from the economic loss.



CLAYTON v UNITED SVCES (Bad Faith Distress) 54 CA4 1158 [See: Torres v Auto Club (REVIEW GRANTED) T/AT 8/95; Waters v United Svces 41 CA4 1063, T/AT 2/96; Gruenberg v Aetna 9 C3 566; Crisci v Security 66 C2 425]



------------



1612 If a judgment including damages for pain, suffering, or emotional distress was entered while the claimant was alive, the claimant's death while an appeal is pending does not invalidate that portion of the judgment or render it unenforceable.



SULLIVAN v DELTA (Pending Appeal) 15 C4 288 [See: CCP 337.34; Sullivan v Delta T/AT 5/96; Fowden v Pacific 149 C 151]



------------



1613 REVIEW DENIED CalTrans has no duty to any individual motorist to de-ice roads, post speed limit signs, or otherwise control the use of snow or ice covered state highways, and is immune from liability for damage caused by weather conditions that would have been apparent to the reasonable person.



ALLYSON v DEPARTMENT OF TRANSPORTATION (Snowy Road) 53 CA4 1304 [See: GovC 810-895.8; Bossi v State 119 CA3 313; Callahan v City 249 CA2 696; Muskopf v Corning, 55 C2 211]



------------



1614 REVIEW GRANTED Statements made in connection with judicial proceedings are not protected by the SLAPP statute unless they concern matters of public interest.



BRIGGS v EDEN COUNCIL (ECHO SLAPP) 54 CA4 1237 [See: CCP 425.16; Xi Zhao v Wong 48 CA4 1114, T/AT 9/96; Linsco v Investors 50 CA4 1633, T/AT 1/97; Braun v Chronicle 52 CA4 1036, T/AT 3/97; Church v Wollersheim 42 CA4 628, T/AT 3/96]



------------



1615 Under Privette, a lessee of realty who hires an independent contractor to perform inherently dangerous work on the land is not liable for job related injuries sustained by an employee of the contractor and resulting from the contractor's negligence, if the contractor is protected by the workers' compensation statute.



LOPEZ v UNIVERSITY PARTNERS (Collapsing Trench) 54 CA4 1117 [See: Woolen v Aerojet 57 C2 407; Privette v Superior Court 5 C4 689, T/AT 9/93; Toland v Sunland T/AT 1/96 (Review Granted); Voigts v Brutoco T/AT 10/96 (Review Granted)]



------------



1616 REVIEW GRANTED / SUBMISSION VACATED The presumption that employment not for a specified term is at-will can be overcome by evidence of an implied agreement not to terminate without cause, which can be found in a totality of circumstances including personnel policies or practices of the employer, the employee's longevity of service, actions or communications by the employer reflecting assurances of continued employment, and practices of the industry in which the employee is engaged.



GUZ v BECHTEL (Totality of Circumstances) 54 CA4 1303 [See: LabC 2922; Foley v Interactive 47 C3 654; Alexander v Nextel 52 CA4 1376, T/AT 4/97]

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1617 REVIEW DENIED An employer's failure to renew a one year employment contract is not a termination and can not be the subject of an action for wrongful termination; however, if the non renewal resulted from discrimination in violation of LabC 6310, the employee may be entitled to damages as set forth in that section.



DALY v EXXON (Non-renewal) 55 CA4 39 [See: LabC 6310(b); Barton v New United 43 CA4 1200, T/AT 5/96; Tameny v Atlantic 27 C3 167; Tollefson v Roman 219 CA3 843]



------------



1618 REVIEW GRANTED A physician has the common law right to fair procedure before being terminated from membership in a health care provider network.



POTVIN v METROPOLITAN (Fair Procedure) 54 CA4 936 [See: Delta v Banasky 27 CA4 1598; Ambrosino v Metropolitan 899 FS 438]



------------



1619 If a public entity's efforts to divert water from a potentially dangerous natural course are unreasonable and fail, causing property damage, the entity may be liable on an inverse condemnation theory for the proportionate amount of damage caused by its actions.



BUNCH v COACHELLA VALLEY WD (Failed Efforts) 15 C4 432 [See: Belair v Riverside 47 C3 550; Locklin v City of Lafayette 7 C4 327, T/AT 4/94]



------------



1620 A public entity's self-insurance through the Joint Powers Authority is not insurance and need not be exhausted before coverage is triggered under a policy requiring exhaustion of all other insurance.



OC WATER DISTRICT v ASSOCIATION (Joint Powers) 54 CA4 772 [See: GovC 6500, 990.4, 990.8; City v S C Joint Powers... 38 CA4 1629, T/AT 10/94]



------------



1621 REVIEW DENIED California is required to give full faith and credit to a judgment of a sister state and may not refuse to enforce such judgment because of circumstances that might permit relief, for excusable neglect, from a California default judgment.



LIQUIDATOR v HENDRIX (Sister State Judgment) 54 CA4 971 [See: CCP 473, 1710.40; Thomas v Washington 448 US 261]



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--------------------

*(T/AT 7/97)

--------------------

------------



1622 REHEARING GRANTED SEE # 1653 Because a commercial, underground parking lot is inherently dangerous, its operator has a duty to act reasonably to protect users against attacks by third persons, even if there have been no prior similar crimes committed on the premises.



SHARON P v ARMAN (Underground Lot) 55 CA4 445 [See: CivC 1714; Rowland v Christian 69 C2 108; Ann M v Pacific Plaza 6 C4 666, T/AT 2/94]



------------



1623 REVIEW GRANTED The firefighter's rule does not prevent recovery by a police officer who is injured by negligence that occurred after the defendant knew or should have known the officer was on the scene.



CALATAYUD v STATE (Loose Shotguns) 55 CA4 295 [See: CivC 1714.9; Knight v Jewett 3 C4 296, T/AT 10/92; Donohue v SFHA 16 CA4 658, T/AT 8/93; Seibert v Superior Court 18 CA4 394, T/AT 11/93; Walters v Sloan 20 C3 199; Hubbard v Boelt 28 C3 480]



------------



1624 REVIEW GRANTED The State Department of Health Services has a statutory duty to test new-borns for hypothyroidism and to accurately report the results; violation of this duty may result in liability.



CREASON v STATE (Hypothyroid) 55 CA4 1197 [See: H&SC 124975 etseq; State v Superior Court 150 CA3 848]



------------



1625 REVIEW DENIED Attorneys appointed by a city as project counsel and bond counsel in connection with a building project in which the city had an interest did not owe a duty of reasonable care to the developer who was constructing the project.



BLM v SABO & DEITSCH (Prevailing Wage) 55 CA4 823 [See: Bily v Arthur Young 3 C4 370, T/AT 11/92; Johnson v Superior Court 38 CA4 463, T/AT 10/95]



------------



1626 A client suing attorneys for malpractice based on their negligent failure to advise appealing an adverse trial court decision has not sustained damage unless it can be established that an appeal would have been successful.



KURINIJ v HANNA and MORTON (Appeal Within Case) 55 CA4 853 [See: Hastings v Halleck 13 C 203; DiPalma v Seldman 27 CA4 1499, T/AT 9/94]



------------



1627 REVIEW DENIED Physical damage to person or property is an essential element in product liability claims based on negligence and strict liability; a plaintiff who receives a jury award that is reduced to $0 by the court after offsetting settlements that plaintiff had previously received may be the prevailing party for the purpose of recovering costs.



ZAMORA v SHELL OIL (Defective Plumbing) 55 CA4 204 [See: Seely v White 63 C2 9; J'Aire v Gregory 24 C3 799; Khan v Shiley 217 CA3 848; CCP 1032; Pirkig v Dennis 215 CA3 1560; Childers v Edwards 48 CA4 1544, T/AT 10/96]



------------



1628 In a false imprisonment action, a police officer is immune from liability for damages resulting from incarceration that occurred pursuant to process of the court.



ASGARI v CITY OF LA (Frame-up) 15 C4 744 [See: GovC 820.4; Sullivan v County 12 C3 710; Jackson v City 121 CA3 579; Smiddy v Varney 665 F2 261]



------------



1629 A state housing authority, although a state agency, is not an arm of the state and, therefore, not immune under the Eleventh Amendment from liability for violating the federal Civil Rights Act.



LYNCH v SFHA (Housing Authority) 55 CA4 527 [See: Will v Michigan Police 491 US 58; Regents v Doe 137 LEd2 55; Hale v State 993 F2 1387]



------------



1630 After a judgment for punitive damages is reversed as excessive, a new trial can be held on the amount of punitive damages only, without the necessity of retrying all other issues.



TORRES v AUTO CLUB (New Puni's Jury) 15 C4 771 [See: CivC 3295; Medo v Superior Court 205 CA3 64; City of El Monte v Superior Court 29 CA4 272, T/AT 11/94; Torres v Auto Club T/AT 8/95]



------------



1631 REVIEW DENIED A real estate broker procuring a loan for a client in an attempt to avoid foreclosure is acting as a foreclosure consultant as defined by the B&PC and may be liable for compensatory and exemplary damages for violations of the Code's requirements.



ONOFRIO v RICE (Foreclosure Consultant) 55 CA4 413 [See: B&PC 2945 etseq]



------------



1632 CCP 1021.9, which provides that the prevailing party is entitled to attorney fees in an action to recover damages resulting from trespassing on lands under cultivation, does not apply to urban backyards or to back yard gardens.



QUARTERMAN v KEFAUVER (Back Yard Garden) 55 CA4 1366 [See: CCP 1021.9; Haworth v Lira 232 CA3 1362]



------------



1633 REVIEW DENIED If plaintiff voluntarily dismisses without prejudice an action for unauthorized use of his/her likeness or name, the trial court has discretion to find that there is no prevailing party for purposes of an attorney fees award under CivC 3344.



GILBERT v NATIONAL ENQUIRER (No Fees) 55 CA4 1273 [See: CivC 3344; Gilbert v National Enquirer 43 CA4 1135, T/AT 5/96; County v David R 200 CA3 98; Catello v ITT 152 CA3 1009; Heather Farms v Robinson 21 CA4 1568]



------------



1634 REVIEW DENIED Deciding whether a hold harmless agreement applies to potential liability for negligence does not depend on whether the agreement makes specific reference to negligence, but requires interpretation of the contract to determine the intent of the parties.



ROOZ v KIMMEL (Hold Harmless) 55 CA4 573 [See: Markley v Beagle 66 C2 951; Western Gulf v Oilwell 219 CA2 235; Rossmoor v Pylon 13 C3 622]



------------



1635 DEPUBLISHED When taking a default judgment, a litigant's failure to inform the court of an adversary's known incapacity is a communication protected against liability by the litigation privilege.



KAUFMAN v SUPERIOR COURT (Helter Skelter) 55 CA4 309 [See: Olivera v Grace 19 C2 570; Silberg v Anderson 50 C3 205; Kimmel v Goland 51 C3 202]



------------



1636 REVIEW DENIED A criminal defense attorney's reading of a complainant's mental health records before their submission to the court is non-communicative and, therefore, not protected by the litigation privilege, and may result in tort liability for invasion of the constitutional right of privacy.



SHARTZER v ISRAELS (Mental Health Records) 55 CA4 1290 [See: CA Const I,1; CivC 47; Hill v NCAA 7 C4 1; People v Reber 177 CA3 523]



------------



1637 REVIEW DENIED A union election is a matter of public interest, and speech by mail is a public forum; so statements made in mailed union election campaign flyers may be protected by the SLAPP statute.



MACIAS v HARTWELL (Union Election) 55 CA4 669 [See: 425.16; Beilenson v Superior Court 44 CA4 944, T/AT 5/96; Robertson v Rodriguez 36 CA4 347, T/AT 8/95; Matson v Dvorak 40 CA4 539, T/AT 12/95; Evans v Unkow 38 CA4 1490, T/AT 11/95; http://www.sirus.com/~casp/]



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1638 If a notice of intention to sue for medical malpractice is served during the last 90 days of the three year maximum period of limitations, the running of the statute of limitations is tolled for 90 days.



RUSSELL v STANFORD (Outside Limit) 15 C4 783 [See: CCP 340.5, 364; Woods v Young 53 C3 315; Rewald v San Pedro 27 CA4 480, T/AT 9/94; Russell v Stanford T/AT 6/96]



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1639 REVIEW DENIED Under a 1994 amendment to the childhood sexual abuse statute of limitations, the amended statute applies to actions commenced after January 1, 1991, even if they were time barred at the time they were commenced.



TIETGE v WESTERN PROVINCE OF THE SERVITES (Wicked Brother) 55 CA4 382 [See: Lent v Doe 40 CA4 1177, T/AT 1/96; Sellery v Cressey 48 CA4 538, T/AT 9/96; David A v Superior Court 20 CA4 281, T/AT 1/94; Debbie Reynolds v Superior Court 25 CA4 222, T/AT 6/94]



------------



1640 REVIEW GRANTED Asbestosis and mesothelioma are separate diseases, so a plaintiff who commences an action for asbestosis does not thereby judicially admit that an action for mesothelioma has accrued.



RICHMOND v GREEN (Separate Diseases) 55 CA4 565 [See: CCP 340.2; Darden v GM 40 CA4 349; Duty v Abex 214 CA3 742]



------------



1641 The statute of limitations on an action for constructive termination based on intolerable working conditions begins to run, not when the intolerable conditions begin, but when plaintiff actually leaves the employment.



MULLINS v ROCKWELL (Constructive Termination) 15 C4 731 [See: Romano v Rockwell 14 C4 479, T/AT 1/97]



------------



1642 DEPUBLISHED In a homeowner's policy, "guaranteed replacement cost" and "value protection" coverages are incompatible with "code upgrade" and "repair to land" exclusions, the combination making the policy ambiguous and therefore requiring construction in favor of the insured.



MARDIROSSIAN v SUPERIOR COURT (Incompatible Provisions) 55 CA4 1464 [See: Desai v Farmers 47 CA4 1110, T/AT 5/96; Bischel v Fire Ins Exch 1 CA4 1168]



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1643 A general or umbrella/catastrophe policy should be considered as excess to a specific or straight excess policy as well as to a primary policy which, as a result of a contingency clause, is converted into an excess policy.



CONTINENTAL v LEXINGTON (Umbrella Excess) 55 CA4 637 [See: Otter v General 34 CA3 940; Ostrager & Newman, Handbook on Insurance Coverage Disputes (8th ed.) @11.03(e)]



------------



1644 The good faith settlement provisions of CCP 877 apply only to pre-verdict settlements and not to settlements made after a verdict has been rendered.



NGUON SEANG BE v WESTERN TRUCK EXCH (Post Verdict Settlement) 55 CA4 1139 [See: CCP 877]



------------



1645 REVIEW DENIED The signature of a litigant's spouse, even though s/he is authorized to act for the litigant, is not sufficient to justify the court's entry of judgment on a stipulation of settlement.



WILLIAMS v SAUNDERS (Spouse's Signature) 55 CA4 1158 [See: CCP 664.6; Levy v Superior Court 10 C4 578, T/AT 7/95]



------------



1646 REVIEW DENIED The federal Boiler Inspection Act does not pre-empt state actions for death or personal injury resulting from exposure to asbestos in railroad locomotives.



VIAD v SUPERIOR COURT (Boiler Inspection) 55 CA4 330 [See: 49 USC 20701 etseq; Cipollone v Liggett 505 US 504; Medtronic v Lohr 135 LEd2 700; Napier v Atlantic 272 US 605; Silkwood v Kerr-McGee 464 US 238]



------------



1647 ERISA does not pre-empt state common law claims by an employer and benefit plan against a contract administrator for alleged breach of contract and tortious conduct.



SIMON LEVI v DUN & BRADSTREET (ERISA) 55 CA4 496 [See 29 USC 1001 etseq; Mackey v Lanier 486 US 825; Fort Halifax v Coyne 482 US 1]

------------



1648 Sexual harassment of a tenant by a landlord is prohibited by the sexual discrimination provisions of the FEHA, and may be prohibited by recent amendments to the Unruh Civil Rights Act.



BROWN v SMITH (Tenant Harassment) 55 CA4 767 [See: GovC 12955, 12927(c), 12993; 42 USC 3601 etseq; Honce v Vigil 1 F3 1085; CivC 51; Harris v Capital 52 C3 1142]

------------



1649 REVIEW GRANTED The Boy Scouts of America is not a business organization under the Unruh Civil Rights Act and can lawfully exclude girls from membership.



YEAW v BOY SCOUTS (Boy Scouts) 55 CA4 607 [See: CivC 51; Warfield v Peninsula 10 C4 594, T/AT 8/95]

------------



1650 Under the California Standards of Judicial Administration for Complex Litigation, a trial court has authority to appoint a discovery referee, even in the absence of a current discovery dispute, and also has authority to appoint a referee to conduct settlement conferences.



LU v SUPERIOR COURT (Discovery Referee) 55 CA4 1264 [See: Cal Stds Jud Admin 19(c); DeBlase v Superior Court 41 CA4 1279; Kirschenman v Superior Court 30 CA4 832; Hogoboom v Superior Court 51 CA4 653]



------------



1651 REVIEW DENIED A jury did not commit misconduct by taking a straw vote immediately upon entering the jury room and then adopting its 10 - 2 result without further discussion or deliberation.



VOMASKA v CITY OF SD (Straw Vote) 55 CA4 905 [See: CCP 613; Griesel v Dart 23 C3 578]



------------



1652 An appellant who chooses to pay transcription fees directly to a reporter, rather than to the clerk of the court, does so at its own risk, and if the reporter absconds with the payment, will be required to pay again to have the record transcribed by a different reporter.



BITTERS v NETWORKS (Delinquent Reporter) 54 CA4 246 [See: CA Rules of Court 4(a), 4(c)]



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--------------------

*(T/AT 8/97)

--------------------

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1653 REVIEW GRANTED [SEE # 1622] Because a commercial, underground parking lot is inherently dangerous, its operator has a duty to act reasonably to protect users against attacks by third persons, even if there have been no prior similar crimes committed on the premises.



SHARON P v ARMAN (Underground Lot) 56 CA4 266 [See: CivC 1714; Rowland v Christian 69 C2 108; Ann M v Pacific Plaza 6 C4 666, T/AT 2/94]



------------



1654 REVIEW DENIED Operators of a baseball stadium owe spectators a duty to avoid increasing inherent risks and may have breached this duty by employing a mascot whose antics distracted a spectator, making him unaware that he was about to be struck by a foul ball.



LOWE v CALIFORNIA LEAGUE (Tremor the Dinosaur) 56 CA4 112 [See: Knight v Jewett 3 C4 296, T/AT 10/92; Morgan v Fuji 34 CA4 127, T/AT 5/95; Fortier v Los Rios 45 CA4 430, T/AT 6/96]



------------



1654A The firefighter's rule (primary assumption of the risk) prevents a tow truck operator from recovering against a vehicle owner whose negligent failure to maintain his vehicle caused it to require a tow and resulted in the tow truck driver's presence on the shoulder of a freeway, where he was struck and injured by another vehicle.



DYER v SUPERIOR COURT (Tow Truck) 56 CA4 61 [See: Giorgi v PG&E 262 CA2 355; Knight v Jewett 3 C4 296, T/AT 10/92; Holland v Crumb 26 CA4 1844, T/AT 9/94; Bryant v Glastetter 32 CA4 770, T/AT 3/95; Neighbarger v Irwin 8 C4 532, T/AT 11/94; Herrle v Est of Marshall 45 CA4 1761, T/AT 7/96]



--------------------



1655 An action against a gynecologist for sexual battery based on a claim that he improperly fondled plaintiff's genitals arises from professional negligence and is subject to the provisions of CCP 425.13, requiring leave of the court to assert a claim for punitive damages.



COOPER v SUPERIOR COURT (Gynecological Abuse) 56 CA4 744 [See: CCP 425.13; Central Pathology v Superior Court 3 C4 181, T/AT 10/92; Davis v Superior Court 27 CA4 623, T/AT 9/94; Williams v Superior Court 30 CA4 318, T/AT 12/94; College Hosp v Superior Court 8 C4 704, T/AT 12/94; United v Superior Court 42 CA4 500, T/AT 3/96; People v Minkowski 204 CA2 832]



------------



1656 REVIEW DENIED When balancing risks against benefits to decide whether a product was defective, a jury should consider warnings printed on the product package as a factor in determining the likelihood that injury would occur.



HANSEN v SUNNYSIDE PRODUCTS (Tile Cleaner) 55 CA4 1497 [See: Greenman v Yuba 59 C2 57; Cronin v Olson 8 C3 121; Barker v Lull 20 C3 413; Daly v GM 20 C3 725; Anderson v Owens 53 C3 987]



------------



1657 REVIEW DENIED Proposition 51 does not apply to a strict products liability case, in which liability is imposed without fault.



WIMBERLY v DERBY CYCLE (Bicycle Fork) 56 CA4 618 [See: Greenman v Yuba 59 C2 57; Vandermark v Ford 61 C2 256; Kaminski v Western MacArthur 175 CA3 445; Moreno v SH Kress 54 CA4 782, T/AT 7/97]



------------



1658 REVIEW DENIED Finding that a successor corporation is liable for damages caused by a defective product manufactured by its predecessor does not entitle the successor, as a matter of law, to the insurance coverage of the predecessor corporation.



GENERAL ACCIDENT v SUPERIOR COURT (Successor Insurance) 55 CA4 1444 [See: Kaminski v Western MacArthur 175 CA3 445; Ray v Alad 19 C3 22; Oliver v USF&G 187 CA3 1510; Quemetco v Pacific 24 CA4 494, T/AT 6/94; AC Label v Transamerica 48 CA4 1188, T/AT 9/96]



------------



1659 An employment manual that specified that drug testing would be conducted only if the employer had a reasonable ground for believing that an employee was under the influence of an intoxicating substance entitled an employee to a reasonable expectation of privacy if no such ground existed; conflicting evidence concerning the reasonableness of the employer's suspicion was sufficient to raise triable issues of fact.



KRASLAWSKY v UPPER DECK (Drug Test) 56 CA4 179 [See: CA Const I, 1; Hill v NCAA 7 C4 1; Loder v City of Glendale 14 C4 846]



------------



1660 The B&PC does not prevent enforcement of a trademark against a defendant who used it prior to its registration, with plaintiff's permission and for the sole purpose of marketing plaintiff's product.



MALLARD CREEK v MORGAN (Wood Shavings) 56 CA4 426 [See: B&PC 14200 etseq; Weinstock v Marks 109 C 529; Carson v Here's Johnnie 698 F2 831; AMF v Sleekcraft 599 F2 341]



------------



1661 REVIEW DENIED The FEHA protects a job applicant against retaliation for complaints of ethnic discrimination, even though the retaliation takes the form of terminating the applicant's relationship as an independent contractor with the prospective employer.



SADA v RFK MEDICAL CENTER (Retaliatory Termination) 56 CA4 138 [See: GovC 12900 etseq, 12940; McDonnell Douglas v Green 411 US 792; Robinson v Shell 136 LEd2 808; Rutherford v American Bank 565 F2 1162]



------------



1662 REVIEW DENIED A claim that plaintiff was denied a tenured faculty position because he expressed unpopular political views is subject to the one year personal injury statute of limitations; a federal court's finding that plaintiff's right to be free of ethnic and age discrimination had not been violated is res judicata in a state action for ethnic and age discrimination, even though federal and state actions were based on different statutes.



ACUNA v REGENTS OF THE UNIVERSITY OF CALIFORNIA (Chicano Studies) 56 CA4 639 [See: CCP 339, 340; Gamble v General Foods 229 CA3 893; Johnson v American Airlines 157 CA3 427]



------------



1663 REVIEW DENIED Although a claim for emotional distress may permit discovery of relevant information about plaintiff's mental health, a party seeking discovery of information protected by plaintiff's constitutional right of privacy must first demonstrate a need for such information.



TYLO v SUPERIOR COURT (Melrose Place) 55 CA4 1379 [See: Britt v Superior Court 20 C3 844]



------------



1664 REVIEW DENIED Damages for emotional distress may be recovered in an action for conversion.



GONZALES v PERSONAL STORAGE (Self-Storage) 56 CA4 464 [See: Windeler v Scheers 8 CA3 844; Schroeder v Auto 11 C3 908]



------------



1665 The state and its political subdivisions are immune from liability for negligence in the design and execution of training exercises under the California Emergency Services Act.



SOTO v STATE (Emergency Exercise) 56 CA4 196 [See: GovC 8655; Johnson v State 69 C2 782; Farmers v State 175 CA3 494; LaBadie v State CA3 1366]



------------



1666 REVIEW DENIED The high speed vehicle pursuit policy of the City of Laguna Beach complies with statutory requirements and, therefore, confers on the City immunity from liability for injuries caused by a fleeing vehicle during a pursuit.



MCGEE v CITY OF LAGUNA BEACH (Pursuit Policy) 56 CA4 537 [See: VehC 17004.5; Colvin v City 11 CA4 1270, T/AT 3/93; Berman v Daly City 21 CA4 276, T/AT 3/94]



------------



1667 REVIEW DENIED If students have a choice as to whether to attend an off premises school activity, the activity is a "field trip or excursion," and the school district operating it is immune from liability for injuries sustained by participants.



WOLFE v DUBLIN USD (Family Farm) 56 CA4 126 [See: EdC 35330, 44808; Castro v LA Bd of Ed 54 CA3 232]



------------



1668 An arbitration agreement in a health plan contract was induced by promissory fraud if a member joined the plan in reliance on promises made by the plan concerning the way in which arbitration would be conducted and with no intention of keeping those promises; an employer negotiating a health plan for employees acts as their agent, so reliance by the employer is reliance by the employees; if a court finds that an arbitration agreement was induced by promissory fraud, it is not enforceable by way of a motion to compel arbitration; whether conduct by a party to arbitration constituted a waiver of the right to compel arbitration is a matter to be determined by the court on a motion to compel arbitration.



ENGALLA v PERMANENTE (Kaiser Arbitration) 15 C4 951 [See: CCP 1281.2; Lazar v Superior Court 12 C4 631, T/AT 2/96; Spinks v Clark 147 C 439; Rosenthal v Great Western 14 C4 394; Engalla v Permanente T/AT 9/95]



------------



1669 REHEARING GRANTED / SEE CASE # 2042 The right to litigate causes of action established by the California Consumers Legal Remedies Act cannot be waived by arbitration agreement; an agreement purporting to submit such claims to arbitration is unenforceable.



BROUGHTON v CIGNA (Consumer Remedies) 56 CA4 594 [See: CivC 1750 etseq; Wolitarsky v Blue Cross 53 CA4 338]



------------



1670 If a party demands trial de novo after arbitration and receives a judgment less favorable than the arbitration award, s/he is not entitled to recover costs and may be required to pay the other party's costs, but s/he may still deduct costs and fees before using the proceeds of the action to satisfy an employer's lien for workers' compensation benefits.



PHELPS v STOSTAD (WC Lien) 16 C4 23 [See: CCP 1141; LabC 3856; Kelly v Bredelis 45 CA4 1819; Phelps v Stostad T/AT 8/96]



------------



1671 Under a standard CGL policy an insurer who defends under a reservation of rights may not subsequently seek reimbursement from the insured for costs of defending claims that were potentially covered by the policy, but, upon establishing its case by a preponderance of the evidence, the carrier can recover costs allocated solely to claims that were not potentially covered.



BUSS v SUPERIOR COURT (Carrier's Reimbursement) 16 C4 35 [See: Montrose v Admiral 10 C4 645, T/AT 8/95; Waller v Truck 11 C4 1, T/AT 10/95]



------------



1672 REVIEW DENIED A county ordinance may validly require ambulance services to carry insurance containing an endorsement requiring that the carrier notify the county 15 days before any change in the policy becomes effective; such regulations are read into all policies issued in compliance with them; failure to notify the county as required by the ordinance prevents the purported change in coverage from being effective.



EMPIRE v BELL (Ambulance Coverage) 55 CA4 1410 [See: Transamerica v Tab 12 C4 389, T/AT 2/96]



------------



1673 REVIEW GRANTED "Superfund" proceedings commenced by a Determination and Order issued by the California Environmental Protection Agency under the Hazardous Substances Account Act constitute a "suit" as the term is used in CGL policies and trigger a carrier's obligation to defend.



FOSTER-GARDNER v NATIONAL UNION (Superfund) 56 CA4 204 [See: AIU v Superior Court 51 C3 807; City of Edgerton v General Cas 184 Wis2 750]



------------



1674 REVIEW GRANTED / DEFERRED An automobile liability carrier is not obligated to pay attorney fees under CCP 1021.4 on behalf of an insured who was convicted of felony drunk driving; therefore the carrier was not liable for these fees in a bad faith action based on its failure to settle within policy limits.



WALKER v TWENTIETH CENTURY (Felony Fees) 56 CA4 74 [See: CCP 1021.4; Baker v Mid-Century 20 CA4 921, T/AT 2/94]



------------



1675 In the absence of relevant admissions by the insured, an insurer moving for summary adjudication of issues or summary judgment on the merits of a case in which coverage is disputed must provide copies of the policies or, if the policies are missing, secondary evidence sufficient to inform the court of the relevant terms and conditions of the insurance contract.



LLOYD'S v SUPERIOR COURT (No Policy) 56 CA4 592 [See: CCP 437c; Leslie G v Perry 43 CA4 472, T/AT 4/96; Villa v McFerren 35 CA4 733, T/AT 7/95]



------------



1676 REVIEW DENIED Under an expired CGL "occurrence" policy, a carrier may be obligated to defend the insured in a claim for property damage that allegedly occurred during the policy period.



COUNTY OF SAN BERNARDINO v PACIFIC INDEMNITY (Expired Policy) 56 CA4 666 [See: Montrose v Superior Court 6 C4 287, T/AT 1/94; Gray v Zurich 65 C2 263; Horace Mann v Barbara B 4 C4 1076, T/AT 5/93]



------------



1677 REVIEW DENIED Under a CGL "claims made" policy, receipt by the insurer of claims made and actions brought prior to the inception of the policy period did not trigger coverage for claims made by the same claimants after expiration of the policy period.



KPFF v CALIFORNIA UNION (Prior Claims) 56 CA4 963 [See: Pacific Employers v Superior Court 221 CA3 1348; Industrial Indemnity v Superior Court 224 CA3 828]



------------



1678 Verified amended pleadings cannot allege facts antagonistic or contradictory to facts alleged in prior verified pleadings, but causes of action alleged in amended pleadings may be inconsistent with causes of action alleged in previous pleadings; an allegation that a sale took place upon plaintiff's cashing of a check was not inconsistent with a previous allegation that plaintiff did not intend a sale to take place upon his cashing of the check.



BERMAN v BROMBERG (Inconsistent Pleadings) 56 CA4 936 [See: Steiner v Rowley 35 C2 713; Thompson v County 59 C2 686; Lee v Hensley 103 CA2 697]

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1679 When records are seized by a special master from the office of an attorney who is not the target of a criminal investigation, the attorney has a right to request that the records be sealed until a hearing is conducted regarding claims of privilege; it is the special master's obligation to set a hearing and give notice of its date, time and place; if the required notice is not given, the records cannot be unsealed.



GORDON v SUPERIOR COURT (Seized Records) 55 CA4 1546 [See: PenC 1524]



------------



1680 If the last day of a statutory period of limitations falls on a day when the court is closed because of earthquake, the statute is tolled for the day.



BENNETT v SUNCLOUD (Defective Shades) 56 CA4 91 [See: CCP 340, 12a, 12b; Rubino v Utah Canning 123 CA2 18]



------------



1681 REVIEW DENIED After a case was submitted to the jury, a juror did not commit misconduct by putting her thoughts in the form of a written statement while at home and reading it to the other jurors in the jury room.



BORMANN v CHEVRON (Juror's Statement) 56 CA4 260 [See: BAJI 15.40; CCP 611]



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--------------------

*(T/AT 9/97)

--------------------

------------



1682 Without a special request to preserve the evidence, an insurer has no obligation to do so for the benefit of a non-insured claimant who needs it in connection with a suit against a third party, and the insurer's failure to do so does not lead to liability for spoliation of evidence.



DUNHAM v CONDOR INS (Loose Trailer) 57 CA4 24 [See: Williams v State 34 C3 18; Smith v Superior Court 151 CA3 491; Reid v State Farm 173 CA3 557]



------------



1683 REVIEW DENIED An accountant's statement that the forecast issued by a company seeking investments was based on sound accounting principles and is valid is an assertion of fact that may result in liability for negligent misrepresentation to persons whom the accountant intended to influence by the statement.



ANDERSON v DELOITTE & TOUCHE (Winery Investors) 56 CA4 1468 [See: CivC 1572, 1710; Molko v Holy Spirit 46 C3 1092; Gagne v Bertran 43 C2 481; Cohen v S & S 151 CA3 941; Bily v Arthur Young 3 C4 370, T/AT 11/92]



------------



1684 REVIEW DENIED / NAME CHANGED Service by mail of a notice of intention to sue for medical malpractice addressed to the prospective defendant in care of an organization for which he was an independent contractor did not satisfy statutory notice requirements and, therefore, did not toll the statute of limitations on the malpractice claim.



DERDERIAN v DIETRICK (ER Associates) 56 CA4 892 [See: CCP 364, 340.5; Woods v Young 53 C3 315; Hanooka v Pivko 22 CA4 1553, T/AT 4/94]



------------



1685 Full indemnity cannot be awarded against a party who was totally without fault; as between defendants who were liable without fault, partial indemnity should be apportioned equally.



CITY OF HUNTINGTON BEACH v CITY OF WESTMINSTER (Police Dog Bite) 57 CA4 220 [See: CCP 875; CivC 3342; Coca-Cola v Lucky 11 CA4 1372, T/AT 3/93; Far West v D&S 46 C3 796]



------------



1686 DEPUBLISHED Issuance of a writ of attachment does not establish as a matter of law that probable cause exists for the underlying action and does not prevent the party against whom the writ was issued from subsequently suing for malicious prosecution.



LANDAKER v WARNER BROS (Kickbacks) 56 CA4 1294 [See: CCP 484.090; Bertero v National 13 C3 43; Leonardini v Shell 216 CA3 547]



------------



1687 A termination that occurred before the employer became aware of the employee's mental illness could not have been the result of discrimination based on the mental illness; a subsequent confirmation of the termination, even though it occurred after the employer became aware of the mental illness, did not make the initial termination wrongful.



BRUNDAGE v LA OFFICE OF THE ASSESSOR (Lost Weeks) 57 CA4 228 [See: 42 USC 12100 etseq; GovC 12900 etseq; Prilliman v United CA4 935, T/AT 5/97; Caldwell v Paramount 41 CA4 189, T/AT 1/96]



------------



1688 REVIEW DENIED An employer may lawfully discriminate against higher paid workers, even though such discrimination is likely to have a disparate effect on older workers, who tend to receive higher salaries.



MARKS v LORAL (Cheap Youth) 57 CA4 30 [See: Metz v Transit 828 F2 1202; Hazen v Biggins 507 US 604]



------------



1689 REVIEW GRANTED In a claim for employment discrimination or retaliatory discharge, the employee has the initial burden of establishing a prima facie case of discrimination or retaliation, after which the burden shifts to the employer to articulate a legitimate reason for the employment action, after which the burden shifts to the employee to show that the reason offered by the employer was a pretext for discrimination or retaliation; constructive discharge occurs when the employer intentionally creates or knowingly permits working conditions that are so intolerable or aggravated that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign; an employer may be liable for punitive damages for conduct involving oppression, fraud, or malice committed by employees with authority regarding promotions, assignments, affirmative action, and transfers; punitive damages should bear some rational relationship to compensatory damages.



LANE v HUGHES AIRCRAFT (Race Discrimination) 56 CA4 1038 [See: Heard v Lockheed 44 CA4 1735, T/AT 6/96; Turner v Anheuser 7 C4 1238, T/AT 8/94; Kelly-Zurian v Wohl 22 CA4 397, T/AT 3/94; CivC 3294; Lane v Hughes T/AT 2/97]



------------



1690 If creation of a customer list required an expenditure of time, effort, or money, it may be a trade secret, protected under the Uniform Trade Secrets Act against use by former employees.



MORLIFE v PERRY (Customer List) 56 CA4 1514 [See: CivC 3426 etseq; Continental v Moseley 24 C2 104]



------------



1691 For the limited purpose of determining whether to apply Proposition 51, a claim for asbestos-related mesothelioma accrued when the disease was first diagnosed or when the plaintiff otherwise became aware of it.



BUTTRAM v OWENS-CORNING (Asbestos Accrual) 16 C4 520 [See: CivC 1431.2; Evangelatos v SuperCt 44 C3 1188; Buttram v Owens T/AT 4/95]



------------



1692 Recollections of childhood sexual abuse are inadmissible if refreshed by sodium amytal interview, and if a case is based entirely on recollections so refreshed, the trial court does not abuse its discretion in granting summary judgment for defendant.



RAMONA v SUPERIOR COURT (Truth Serum) 57 CA4 107 [See: Frye v US 293 F 1013; People v Kelly 17 C3 24; People v Jones 52 C2 636; Schall v Lockheed 37 CA4 1485, T/AT 10/95]



------------



1693 Although the EvC provides that statements made during the course of mediation shall be confidential, this requirement does not mandate the disqualification of an attorney who represented a different claimant in mediation against the same defendant.



BARAJAS v OREN (Mediation Disqualification) 57 CA4 209 [See: EvC 1152.5]



------------



1694 REVIEW DENIED An insurer's failure to make an adequate investigation before refusing to defend its insured is not excusable neglect and does not justify vacating a judgment entered against the insured.



EIGNER v WORTHINGTON (Inexcusable Neglect) 57 CA4 188 [See: CCP 473; InsC 11580; American International v Fidelity 49 CA4 1558, T/AT 11/96; Drinnon v Oliver 24 CA3 571]



------------



1695 REVIEW DENIED Under a CGL policy containing an exclusion for claims resulting from assault and battery or for personal injury claims arising from incidents in which bodily harm to the claimant was intended or expected by the insured, the carrier had no obligation to defend an action brought by a person who alleged that he was beaten up by the insured's bartender -- who was also an insured -- even though the action stated causes of action for negligence and negligent hiring.



ZELDA v NORTHLAND (Battling Bartender) 56 CA4 1252 [See: Horace Mann v Barbara B 4 C4 1076, T/AT 5/93; Gray v Zurich 65 C2 263; Waller v Truck 11 C4 1, T/AT 10/95]



------------



1696 Under a CGL policy containing Medical Payments provisions, a person injured on the insured's premises but not paid by the carrier may maintain a breach of contract action directly against the carrier as a third party beneficiary of the Medical Payments coverage.



HARPER v WAUSAU INS (Med Pay) 56 CA4 1079 [See: CivC 1559; Garratt v Baker 5 C2 745; Alling v Universal 5 CA4 1412]



------------



1697 REVIEW DENIED An injunction issued as a result of contractual arbitration and confirmed by a trial court can be modified, but the proper forum in which to seek modification is arbitration rather than the trial court.



SWAN v SUPERIOR COURT (Arbitration Injunction) 56 CA4 1504 [See: CivC 3424; CCP 1287.4; Sontag v Superior Court 18 C2 92; Union v Savage 52 C2 601; Salazar v Eastin 9 C4 836]



------------



1698 DEPUBLISHED When the Department of Health Services provides Medi-Cal coverage through a prepaid health plan, the department may enforce a lien against a beneficiary's recovery, but only for the premiums it has paid.



MOORE v KAISER (Medi-Cal Lien) 57 CA4 178 [See: W&IC 14200 etseq; Kizer v Hirata 20 CA4 841]



------------



1699 A default judgment in a Municipal Court action cannot exceed the amount specifically demanded in the complaint; a complaint that demands damages "in an amount in excess of $3,000.00, and according to proof at time of trial" cannot result in a default judgment exceeding $3,000 plus permissible costs.



JANSSEN v LUU (Excessive Default) 57 CA4 272 [See: CCP 425.10; Becker v SPV 27 C3 489; Ely v Gray 224 CA3 1257; Schwab v Rondel 53 C3 428]



------------



1700 REVIEW DENIED The use of e-mail and telephone by a party in another state to transact business in California may establish sufficient minimum contacts with California to confer personal jurisdiction on California courts.



HALL v LARONDE (Long Arm) 56 CA4 1342 [See: Von's v Seabest 14 C4 434, T/AT 1/97; International Shoe v Washington 326 US 310; Interdyne v SYS 31 CA3 508; American Continental v Superior Court 216 CA2 317; Tiffany v Krupp 276 CA2 610]



------------



1701 A trial court may not dismiss a case for noncompliance with local court Fast Track rules, if noncompliance is the responsibility of counsel, rather than of the litigant.



GARCIA v McCUTCHEN (Fast Track Dismissal) 16 C4 469 [See: CCP 575.2(b); GovC 68600 etseq; Intel v USAIR 228 CA3 155; State v Bragg 183 CA3 1018; Cooks v Superior Court 224 CA3 723]



------------

--------------------

*(T/AT 10/97)

--------------------

------------



1702 In relaying to a real estate buyer representations made by the seller, the duty of a seller's broker is limited to acting in good faith and having a reasonable basis for believing the representations to be true.



ROBINSON v GROSSMAN (Stucco Cracks) 57 CA4 634 [See: CivC 2079 etseq; Easton v Strassburger 152 CA3 90; Padgett v Phariss 54 CA4 1270; Salahutdin v Valley 24 CA4 555]



------------



1703 REVIEW DENIED An insurer and its agent do not have a duty to advise an insured to buy additional or different insurance coverage, unless (a) the agent misrepresents the nature, extent or scope of the coverage being offered or provided; or (b) the insured requests or inquires about a particular type or extent of coverage; or (c) the agent assumes an additional duty by either express agreement or by holding him/herself out as having expertise in a given field.



FITZPATRICK v HAYES (Underinsured Underinsured) 57 CA4 916 [See: Gibson v Government Employees 162 CA3 441; Pabitzky v Frager 164 CA3 401; Jones v Grewe 189 CA3 950; Ahern v Dillenback 1 CA4 36, Westrick v State Farm 137 CA3 685; Free v Republic 8 CA4 1726, T/AT 11/92; Kurtz... v Insurance Communications 12 CA4 1249, T/AT 4/93; Desai v Farmers 47 CA4 1110, T/AT 9/96; Paper Savers v Nacsa 51 CA4 1090, T/AT 1/97]



------------



1704 An attorney retained by an insurer to represent its insured owes no duty to the insured's excess insurer.



AMERICAN CASUALTY v O'FLAHERTY (Attorney's Duty) 57 CA4 1070 [See: Unigard v O'Flaherty & Belgum 38 CA4 1229, T/AT 11/95]



------------



1705 InsC 12389, which authorizes the Insurance Commissioner to take action against a licensee found to be in violation of statutory requirements, does not impose on the Commissioner a duty to members of the public.



QUACKENBUSH v SUPERIOR COURT (Commissioner's Duty) 57 CA4 660 [See: GovC 815.6; InsC 12389; Gray v State 207 CA3 151]



------------



1706 REVIEW DENIED Although the relationship of common carrier to passenger imposes on the carrier a heightened duty of care, the relationship ends, and with it the heightened duty, when the carrier discharges the passenger at a place of relative safety, such as a BART platform.



McGETTIGAN v BAY AREA RTD (Vodka Bottle) 57 CA4 1011 [See: CivC 2100; Falls v SF RR 97 C 114; Gray v City 202 CA2 319; Orr v Pacific 208 CA3 1467; Marshall v United 35 CA3 84; Brandelius v City 47 C2 729]



------------



1707 REVIEW GRANTED A mother may recover for emotional distress resulting from concern for her own well-being caused by negligence in the delivery of her baby; although its effect may be harsh, CCP 667.7, which requires the court, upon the request of a party, to enter judgment for periodic payments if future non-economic damages exceed $50,000, does not violate the constitutional rights to jury trial or due process.



SALGADO v COUNTY OF LA (Periodic Payments) 57 CA4 574 [See: Dillon v Legg 68 C2 728; Molien v Kaiser 27 C3 1033; Burgess v Superior Court 2 C4 1064; CCP 667.7; Hrimnak v Watkins 38 CA4 964, T/AT 11/95]



------------



1708 REVIEW DENIED A plaintiff suing for medical malpractice on the informed consent theory must prove that a reasonable person in his/her situation would not have consented to the procedure involved had the risks been properly disclosed, but need not prove that s/he would not have consented had proper disclosure been made; a plaintiff who is warned of the risk of contracting one disease but not another, and who would not have consented to the surgery had s/he known of the undisclosed risk, may recover damages under the informed consent theory for contracting the disease about which s/he had been warned; plaintiff's knowledge that she has contracted a disease that she had been warned was a risk of the procedure to which she consented, does not constitute discovery of malpractice on the informed consent theory and does not start the statute of limitations running on an action for damages for another disease, about which plaintiff he had not been warned; an appellate court has the inherent power to grant a calendar preference to a pending appeal.



WARREN v SCHECTER (Bone Disease) 57 CA4 1189 [See: Cobbs v Grant 8 C3 229; Arato v Avedon 5 C4 1172, T/AT 11/93; BAJI 611; Truman v Thomas 27 C3 285; Topa v Fireman's 39 CA4 1331, T/AT 12/95]



------------



1709 REVIEW DENIED A motion picture company that agrees to pay a director for the right of first refusal on projects the director is interested in developing and also agrees to consider using the director's services for future motion pictures and to pay the director whether it uses her services or not, has an obligation to make good faith evaluations of the projects submitted by the director; if it made the promises with no intention of making good faith evaluations, it may be liable for promissory fraud.



LOCKE v WARNER BROS (Clint's Deal) 57 CA4 354 [See: Lazar v Superior Court 12 C4 631, T/AT 2/96; Perdue v Crocker 38 C3 913]



------------



1710 REVIEW GRANTED The First Amendment protects recreational works just as it does political expression; if a film is an obvious work of fiction, a few similarities between the name and attributes of a character in it and those of the plaintiff are not sufficient to result in liability for invasion of privacy by appropriation of identity.



POLYDOROS v TWENTIETH CENTURY FOX (Sandlot) 57 CA4 795 [See: CivC 3344; Eastwood v Superior Court 149 CA3 409; Aguilar v Universal 174 CA3 384; Peo ex rel Maggio v Scribner's 130 NYS2 514; Time v Hill 385 US 374; Burstyn v Wilson 343 US 495; Guglielmi v Spelling 25 C3 860]



------------



1711 REVIEW DENIED B&PC 7539, which provides that a licensed private investigator may not divulge information acquired by him/her except at the direction of the employer or client for whom the information was obtained, does not prevent disclosure of the client's identity.



FLYNN v SUPERIOR COURT (Trash Bandit) 57 CA4 990 [See: B&PC 7539]



------------



1712 REVIEW GRANTED An action against an insurer for spoliation, based on its destruction of evidence necessary to plaintiff's action against its insured, can be consolidated with plaintiff's negligence action against the insured, even though this will inform the jury of insurance.



UNITED SVCS v SUPERIOR COURT (Consolidated Spoliation) 57 CA4 462 [See: EvC 1155; Turner v Mannon 236 CA2 134; Blake v Thompson 170 CA3 823; Willard v Caterpillar 40 CA4 892, T/AT 1/96]



------------



1713 FEHA does not provide the exclusive remedy for age discrimination; a victim of employment discrimination based on age may bring a common law action for wrongful discharge in violation of public policy, even though s/he has not exhausted the remedies or followed the procedures provided by FEHA.



STEVENSON v SUPERIOR COURT (Age Discrimination) 16 C4 880 [See: GovC 12900 etseq; Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083; Rojo v Kliger 52 C3 65; Jennings v Marralle 8 C4 121, T/AT 9/94 ]



------------



1714 REVIEW DENIED A plaintiff suing a former employer for discrimination must first make out a prima facie case of discrimination, and then, if the defendant offers a legitimate non-discriminatory reason for the employment action, must show that the proffered reason is pretextual, by demonstrating its weaknesses, implausibilities, inconsistencies, incoherences, or contradictions.



HERSANT v CA DEPT OF SOC SVCS (Over Forty) 57 CA4 997 [See: McDonnell Douglas v Green 411 US 792; Sada v RFK Med Ctr 56 CA4 138, at 8/97; St Mary's v Hicks 509 US 502; Barber v Rancho 26 CA4 1819, T/AT 9/94; Martin v Lockheed 29 CA4 1718, T/AT 12/94]



------------



1715 REVIEW GRANTED A person acting as an agent of an employer can be individually liable for employment discrimination.



RENO v BAIRD (Cancer Termination) 57 CA4 1211 [See: GovC 12900 etseq; Mogilefsky v Superior Court 20 CA4 1409, T/AT 2/94; Page v Superior Court 31 CA4 1206, T/AT 2/95; Matthews v Superior Court 34 CA4 598, T/AT 6/95; Janken v GM Hughes 46 CA4 55, T/AT 7/96; Auto Equity v Superior Court 57 C2 450]



------------



1716 A government employee's free speech rights outweighed her employer's interest in maintaining stability in the workplace, so disciplinary action taken against the employee for accurately informing others of a conflict of interest within her department was a violation of her rights, even though the employee may have been motivated by something other than a desire to bring wrongdoing to public attention.



KIRCHMANN v LAKE ELSINORE USD (Conflict Fax) 57 CA4 595 [See: Waters v Churchill 511 US 661; Pickering v Bd of Ed 391 US 563; Rankin v McPherson 483 US 378]



------------



1717 REHEARING GRANTED Unless a franchisor retains control over the franchisee's day-to-day activities, the franchisee is not an agent of the franchisor, and the franchisor is not vicariously liable for the franchisee's torts.



KAPLAN v COLDWELL BANKER (Franchise) 57 CA4 958 [See: CorpC 31000; Cislaw v Southland 4 CA4 1284]



------------



1718 Privette applies to prevent a landholder who employs an independent contractor from being vicariously liable under the "peculiar risk" doctrine to an employee of the contractor who is injured by the contractor's negligence, even though the contractor has agreed in writing to indemnify the landholder for any liability resulting from the contractor's work.



REDFEATHER v CHEVRON (Peculiar Risk Agreement) 57 CA4 702 [See: Privette v Superior Court 5 C4 689, T/AT 9/93; Owens v Giannetta 23 CA4 1662, at 5/94; Smith v ACandS 31 CA4 77, T/AT 2/95; Whitford v Swinerton 34 CA4 1054, T/AT 6/95]



------------



1719 If reasonable minds would differ about whether the design of public property was reasonable, the government entity approving the design and maintaining the public property is immune from liability.



GRENIER v CITY OF IRWINDALE (Flooded Street) 57 CA4 931 [See: GovC 830.6; Cameron v State 7 C3 318; Higgins v State 54 CA4 177, T/AT 5/97]



------------



1720 REVIEW GRANTED / REVIEW DISMISSED AND REMANDED TO 2ND DIST An action for intentional infliction of emotional distress brought by defendant's former husband and based on defendant's attempts to dispute the plaintiff's paternity of their child would violate public policy and, therefore, cannot be maintained. (Strong dissent.)



STEVE H v WENDY S (Paternity) 57 CA4 379 [See: Self v Self 58 C2 683; Klein v Klein 58 C2 692; Nagy v Nagy 210 CA3 1262; Richard P v Superior Court 202 CA3 1089]



------------



1721 REHEARING GRANTED The practice known as "balance billing" is prohibited by federal statute; so, once a health care provider has accepted payment from Medi-Cal, it no longer has a right to a lien on the proceeds of the patient's third party tort action.



BROOKS v ST. MARY HOSP (Balance Billing) 57 CA4 241 [See: W&IC 14124.791(a); 42 CFR 447.15; 42 USC 1396a; Evanston v Hauck 1 F3 540]



------------



1722 REVIEW DENIED By agreeing to a settlement including a provision that the parties would submit to the court the issue of whether attorney fees should be awarded and if so in what amount, a defendant waived the protection of CivC 1717, which provides that when an action is settled, there is no prevailing party; sale of an extended service agreement with a used motor vehicle brings the transaction within the provisions of the Song-Beverly Consumer Warranty Act.



REVELES v TOYOTA BY THE BAY (Lemon Fees) 57 CA4 1139 [See: CivC 1717, 1790 etseq; Blanton v Womancare 38 C3 396; International Ind v Olen 21 C3 218]



------------



1723 Under a commercial CGL policy that excluded liability for pollution unless it was sudden and unexpected, triable issues of fact existed as to whether the insurer had a duty to defend and indemnify for liability caused by accidental spills which led to ground contamination.



A-H PLATING v AMERICAN NATIONAL (Accidental Spills) 57 CA4 427 [See: Shell v Winterthur 12 CA4 715, T/AT 3/93]

------------



1724 After a Bankruptcy court has discharged a bankrupt from potential liability to plaintiff for negligence, plaintiff may sue the bankrupt to establish liability as a precondition to collection from the bankrupt's insurance carrier.



FORSYTH v JONES (Bankrupt Insured) 57 CA4 776 [See: Green v Welsh 956 F2 30; Ortiz v WCAB 4 CA4 392; In re White 761 F2 270]



------------



1725 In the absence of relevant admissions by the insured, an insurer moving for summary adjudication or summary judgment in a coverage dispute must provide copies of the policies or, if the policies are missing, secondary evidence sufficient to inform the court of the relevant terms and conditions of the insurance contract.



LLOYD'S v SUPERIOR COURT (Missing Policy) 56 CA4 952 [See: Leslie G v Perry 43 CA4 472, T/AT 4/96; Foxborough v Van Atta 26 CA4 217, T/AT 8/94; Union Bank v Superior Court 31 CA4 573, T/AT 2/95]

------------



1726 NAME CHANGED FROM HIX The New Motor Vehicle Board does not have jurisdiction to consider a claim for contractual interference based on tortious business practices, made by a nonsignatory to a franchise agreement with an auto manufacturer.



TOVAS v AMERICAN HONDA (Motor Vehicle Board) 57 CA4 506 [See: VehC 3050; Yamaha v Superior Court 185 CA3 1232; Yamaha v Superior Court 195 CA3 652; Zaheri v Mitsubishi 17 CA4 288]



------------



1727 Just as the court retains subject matter jurisdiction for the purpose of entertaining a motion to vacate a judgment, the attorney-client relationship is deemed to continue for the purpose of responding, or at least accepting service regarding such an action.



MAXWELL v COOLTECH (Continuing Relationship) 57 CA4 629 [See: CCP 410.50; Basinger v Rogers 220 CA3 16; Harris v Billings 16 CA4 1396; Associated v Marks 33 CA3 116]



------------



1728 If a plaintiff who was properly served with a request for a statement of damages fails or refuses to serve a responsive statement, CCP 425.11 provides that the defendant may petition the court for an order that the plaintiff serve one; unless defendant has availed itself of that statutory remedy, it has waived the right to exclude evidence of damages at trial.



ARGAME v WERASOPHON (Statement of Damages) 57 CA4 616 [See: CCP 425.10, 425.11]

------------



1729 REVIEW DENIED The denial of a motion to recuse a trial judge is subject to writ review, and a party's failure to seek review by writ prevents subsequent review upon appeal from an unfavorable judgment, unless the appeal is based on a claim that the final judgment is constitutionally invalid because of judicial bias.



ROTH v PARKER (Recusal Review) 57 CA4 542 [See: CCP 170.6; People v Hull 1 C4 266; People v Brown 6 C4 322]



------------



1730 The federal Longshore and Harbor Workers' Compensation Act bars a negligence action against the owner of a scow for an injury sustained on navigable waters by a person it employed to repair or modify the scow.



JONES v DUTRA (Scow Repair) 57 CA4 871 [See: 33 USC 905(b); New v Associated 863 F2 1205; Gay v Barge 915 F2 1007; Heise v Fishing 79 F3 903]



------------



1731 A trial judge who, by agreement of the parties was authorized to arbitrate a dispute and issue a non-appealable award; who was not paid or privately retained by the parties; who conducted a proceeding closely resembling a bench trial, in court, where he swore witnesses; and who signed papers referring to himself as an arbitrator, but which bore the standard judicial imprint and referred to him as "the court;" was acting as a judicial officer rather than as an arbitrator, and, therefore, was not subject to limitations imposed by the California Arbitration Act.



ELLIOTT v CITY OF LONG BEACH (Arbitration Judge) 57 CA4 495 [See: CCP 1280 etseq; CA Const VI, 17; Cheng-Canindin v Renaissance 50 CA4 676, T/AT 12/96]

------------



1732 DEPUBLISHED The statute of limitations on disciplinary action by a school district for an employee's engaging, off premises, in sexual intercourse with a student is tolled until the district learns of the incident.



ASHURST v MONTEREY PENINSULA USD (Off Premises) 57 CA4 665 [See: EdC 45113; Jolly v Eli Lilly 44 C3 1103; Gutierrez v Mofid 39 C3 892; Bernson v Browning-Ferris 7 C4 926, T/AT 7/94]



------------



1733 REVIEW DENIED A plaintiff who commences an action for asbestos disease thereby admits that a cause of action has accrued, and this starts the statute of limitations running against any subsequent attempt by the same plaintiff to commence another action for the same injury.



BARR v ACandS (Asbestos S/L) 57 CA4 1038 [See: CCP 340.2; Duty v Abex 214 CA3 742; Darden v GM 40 CA4 349; Richmond v Green 55 CA4 565, T/AT 7/97]



------------



1734 A jury instruction, pursuant to a Solano County Complex Asbestos Litigation General Order, shifting the burden of proving lack of causation to defendant is incorrect; plaintiff has the burden of proving that exposure to the defendant's asbestos products was, in reasonable medical probability, a substantial factor in causing or contributing to his/her risk of developing cancer, but need not prove with medical exactitude that fibers from a particular defendant's asbestos-containing products were those, or among those, that actually began the cellular process of malignancy.



RUTHERFORD v OWENS-ILLINOIS (Asbestos Burden) 16 C4 953 [See: Buttram v Owens-Corning, 16 C4 520, T/AT 9/97; Lineaweaver v Plant 31 CA4 1409, T/AT 3/95]

------------



1735 REVIEW DENIED The mandatory relief provisions of CCP 473, requiring vacation of a judgment when a proper motion is made within 6 months and is accompanied by an attorney's affidavit attesting to his/her mistake, inadvertence, surprise, or excusable neglect, apply to summary judgment granted because opposition papers were untimely served and filed.



AVILA v CHUA (Late Opposition) 57 CA4 860 [See: CCP 473; Ayala v Southwest 7 CA4 40; Lorenz v Commerical 40 CA4 981, T/AT 1/96; Graham v Beers 30 CA4 1656, T/AT 1/95; Huens v Tatum 52 CA4 259, T/AT 3/97]



------------



1736 The mandatory relief provisions of CCP 473, requiring vacation of a judgment when a proper motion is made within 6 months and is accompanied by an attorney's affidavit attesting to his/her mistake, inadvertence, surprise, or excusable neglect, do not apply to dismissals for failure to serve a complaint within 3 years.



BERNASCONI v ST. JOSEPH'S (Mandatory Relief) 57 CA4 1078 [See: CCP 473, 583.410, 583.210, 583.250; Peltier v McCloud 34 CA4 1809, T/AT 6/95]



------------

--------------------

*(T/AT 11/97)

--------------------

------------



1737 Proposition 213 does not violate constitutional guarantees of due process or equal protection and is valid as applied retroactively and prospectively.



YOSHIOKA v SUPERIOR COURT (Prop 213) 58 CA4 972 [See: CivC 3333.4]



------------



1738 REVIEW DENIED The risk of being struck by a flying sinker is inherent in the sport of fishing, so recovery for resulting damages is barred by the doctrine of primary assumption of the risk.



MOSCA v LICHTENWALTER (A/R Sportfishing) 58 CA4 551 [See: Knight v Jewett 3 C4 296, T/AT 10/92]



------------



1739 REVIEW GRANTED A plaintiff suing an attorney for malpractice connected with the defense of a criminal prosecution must prove that without the malpractice the plaintiff would not have been convicted, but need not prove his/her actual innocence.



WILEY v COUNTY OF SD (PD Malpractice) 58 CA4 434 [See: Schultz v Harney 27 CA4 1611, T/AT 10/94; Younan v Caruso 51 CA4 401, T/AT 1/97; Tibor v Superior Court 52 CA4 1359, T/AT 4/97]



------------



1740 Since poker players cannot prove that without cheating they would not have lost money, they cannot establish that a poker club's negligence in failing to prevent cheating was a proximate cause of money they lost.



VU v CALIFORNIA COMMERCE CLUB (Poker Room) 55 CA4 229 [See: Youst v Longo 43 C3 64]



------------



1741 REVIEW DENIED In a condemnation proceeding involving only part of a parcel of land, severance damages recovered by the owner of the parcel may be offset by benefits resulting from the public work for which the land was condemned, even if those benefits are enjoyed by all property holders in the neighborhood (i.e., general benefits).



LA MTA v CONTINENTAL (Green Line) 16 C4 694 [See: Beveridge v Lewis 137 C 619]



------------



1742 REVIEW GRANTED A lender's acquisition of secured property by full credit bid at a nonjudicial foreclosure sale does not prevent the lender from maintaining a negligent misrepresentation action against third party non-borrowers who induced the lender to make the loans.



ARLINGTON v TARCHER (Full Credit Bid) 58 CA4 83 [See: Alliance v Rothwell 10 C4 1226, T/AT 10/95]



------------



1743 REVIEW GRANTED / REVIEW DISMISSED Privette does not prevent a subcontractor's employee who received workers compensation for a job-related injury from recovering tort damages from the landholder or general contractor for their own negligence.



ZEIGER v STATE (Collapsing Scaffold) 58 CA4 532 [See: Woolen v Aerojet 57 C2 407; Privette v Superior Court 5 C4 689; Toland v Sunland 49 CA4 212, T/AT 1/96; Voigts v Brutoco 49 CA4 354, T/AT 10/96]



------------



1744 Even though an employee believed that her performance rating should have been "outstanding" and that she should have received an 8 to 10% merit increase, a performance evaluation of "highly commendable" and a 7% merit increase did not constitute working conditions so intolerable that the employee's resignation could be classified as a constructive discharge.



CASENAS v FUJISAWA (Harassment Retaliation) 58 CA4 101 [See: Foley v Interactive Data Corp. 47 C3 654; Gantt v Sentry Insurance 1 C4 1083; Rojo v Kliger 52 C3 65; Turner v Anheuser 7 C4 1238, T/AT 8/94]



------------



1745 REVIEW DENIED Termination of an independent contract on the basis of racial bias is not a tort.



SISTARE-MEYER v YMCA (Caucasian Discrimination) 58 CA4 10 [See: CA Const I, 8; GovC 12940; Tameny v Atlantic 27 C3 167; Foley v Interactive 47 C3 654; Rojo v Kliger 52 C3 65; Gantt v Sentry 1 C4 1083; Carmichael v Alfano 233 CA3 1126; Sada v RFK Medical 56 CA4 138, T/AT 8/97; Abrahamson v NME 195 CA3 1325; Harris v Atlantic 14 CA4 70, T/AT 5/93]



------------



1746 As a third party beneficiary, an employer can enforce an arbitration agreement contained in an employee's contract with a national association.



CIONE v FORESTERS (Third Party Beneficiary) 58 CA4 625 [See: CCP 1559; Chan v Drexel 178 CA3 632; Spellman v Securities 8 CA4 452, T/AT 10/92; Engineers v Community 30 CA4 644]



------------



1747 DEPUBLISHED Denying an employee's right to file a grievance and misinforming the employee about the identity of the person who would decide any grievance that was filed may result in the employer's forfeiture or waiver of the right to compel exhaustion of internal remedies prior to litigation.



BAYLEY v REGENTS (Grievance Waiver) 57 CA4 1314 [See: Engalla v Permanente 15 C4 951, T/AT 8/87]



------------



1748 Following termination for cause, a state employee's application for retirement pay did not constitute a voluntary resignation; upon subsequent withdrawal of the termination, the employee was entitled to reinstatement.



LUCAS v STATE (Retirement Pay) 58 CA4 744 [See: Coleman v Department 52 C3 1102; Pyne v Meese 172 CA3 392]



------------



1749 Security fraud statutes do not apply to stock transfers made as part of a marital dissolution property distribution.



D'ELIA v D'ELIA (Stock Fraud) 58 CA4 415 [See: FamC 2120 - 2129; CorpC 25402; Smith v Pust 19 CA4 263, T/AT 12/93; Askew v Askew 22 CA4 942, T/AT 3/94; Bidna v Rosen 19 CA4 27, T/AT 12/93]



------------



1750 REVIEW DENIED The litigation privilege is absolute and is not lost by the malice of the person claiming it.



ARONSON v KINSELLA (Venture Capitalism) 58 CA4 254 [See: CivC 47; Silberg v Anderson 50 C3 205; Rubin v Green 4 C4 1187, T/AT 5/93; Laffer v Levinson... 34 CA4 117, T/AT 5/95]



------------



1751 The District Attorney's office and employees in its family support division are immune from liability under state law and the federal Civil Rights Act for damages resulting from overzealous attempts to collect child support.



KAPLAN v SLO DISTRICT ATTORNEY (Overzealous Collection) 58 CA4 175 [See: GovC 821.6, 815.2; Imbler v Pachtman 424 US 409; Coverdell v Dept of S&H 834 F2 758]



------------



1752 REVIEW DENIED Statutes protecting a water company from liability for failure to maintain fire fighting equipment apply to damage resulting from leaks in a fire prevention water delivery system.



VALLEY TITLE v SAN JOSE WATER COMPANY (Flooded Files) 57 CA4 1490 [See: PUC 774; GovC 850, 850.2, 850.4; Razeto v City 88 CA3 349]



------------



1753 An excess insurer's contribution toward settlement of an action against its insured, without reservation of rights, does not prevent it from subsequently seeking indemnity from primary carriers against which it did reserve rights.



MITCHELL, SILBERBERG... v YOSEMITE INS (Excess Reservation) 58 CA4 389 [See: Tomerlin v Canadian 61 C2 638; Miller v Elite 100 CA3 739; Signal v Harbor 27 C3 359]



------------



1754 REVIEW DENIED A title insurance policy that insured certain described land did not require the carrier to defend the insureds against an action regarding title to an area described on a subdivision map as "not a public street," which was neither part of nor appurtenant to the insured land, and so the carrier's refusal to defend was not a breach of the implied covenant of good faith and fair dealing.



HAVSTAD v FIDELITY NATIONAL (Not Public) 58 CA4 654 [See: Gray v Zurich 65 C2 263; Buss v Superior Court 16 C4 35, T/AT 8/97]



------------



1755 REVIEW GRANTED An administrative claim brought against an insured is not a "suit," as that term was used in a CGL policy, and therefore did not trigger the carrier's obligation to defend.



INSURANCE COMPANY v SUPERIOR COURT (Administrative Claim) 57 CA4 1252 [See: Foster-Gardner v National Union 56 CA4 204, T/AT 8/97; AIU v Superior Court 51 C3 807]



------------



1756 REVIEW DENIED Multiple motions for summary adjudication are permitted in insurance coverage disputes, each to be decided on the basis of what the carrier knows at the time the motion is made; a new motion, based on a completely different fact scenario than a motion previously made is not a motion for reconsideration, and should be considered on the merits.



LIBERTY MUT v SUPERIOR COURT (New Motion) 58 CA4 617 [See: CCP 1008; Montrose v Admiral 10 C4 645, T/AT 8/95; Montrose v Superior Court 6 C4 287, T/AT 1/94; Haskel v Superior Court 33 CA4 963, T/AT 4/95]



------------



1757 A cross-defendant in whose favor a dismissal of the cross-complaint is entered as a result of a good faith settlement with the plaintiff is a prevailing party and entitled to costs as against the cross-complainant.



GREAT WESTERN v CONVERSE (Cross Settlement) 58 CA4 609 [See: CCP 877.6, 1032; Crib v NBS/Lowry 47 CA4 886; Zamora v Shell 55 CA4 204, T/AT 7/97; Pirkig v Dennis 215 CA3 1560; Syverson v Heitmann 171 CA3 106]



------------



1758 REVIEW DENIED After a judgment for attorney fees had been entered in favor of an attorney who withdrew from representation of a client, a trial court did not have the power to approve, or abused its discretion by approving, a settlement between the client and its adversary that was designed to avoid a lien for the fees.



EPSTEIN v ABRAMS (Protected Lien) 57 CA4 1159 [See: Haupt v Charlie's 17 C2 843; Jones v Martin 41 C2 23; Tracy v Ringole 87 CA 549; Isrin v Superior Court 63 C2 153]



------------



1759 REVIEW DENIED B&PC sections requiring service of briefs on the state Attorney General within 3 days after commencing an appeal in a matter involving the Unfair Competition Act are satisfied by service within 3 days after filing of the brief.



CALIFORNIANS FOR POPULATION STABILIZATION v HEWLETT-PACKARD (AG Service) 58 CA4 273 [See: B&PC 17200 etseq; In re Melinda J 234 CA3 1413; Moyal v Lanphear 208 CA3 491]



------------



1760 DISAPPROVED If a timely and verified response is not served in response to requests for admission, a trial court must grant a motion to deem the matters admitted and award sanctions, unless proper responses are served subsequently and the court finds that the failure to respond in a timely fashion resulted from mistake, inadvertence, or excusable neglect by the attorney.



ALLEN-PACIFIC v SUPERIOR COURT (RFA) 57 CA4 1546 [See: CCP 2023; Courtesy v Superior Court 219 CA3 52; Brigante v Huang 20 CA4 1569, T/AT 2/94]



------------



1761 A California trial court did not abuse its discretion by staying, on the ground of forum non conveniens, an action for a declaratory judgment between Oregon and Hawaiian residents regarding coverage under a policy of insurance issued in Hawaii, when there was a similar action pending in Hawaii.



CENTURY v B OF A (Hawaii Coverage) 58 CA4 408 [See: CCP 410.30; Price v Atchison 42 C2 577; Hansen v Owens 51 CA4 753; Ford v INA 35 CA4 604]



------------



1762 REVIEW DENIED The federal Natural Gas Pipeline Safety Act pre-empts state safety requirements concerning interstate natural gas pipelines.



SO CA GAS v CAL OSHA (Gas Pipeline) 58 CA4 200 [See: 49 USC 60101 etseq; Medtronic v Lohr 116 SCt 2240]



------------



1763 REVIEW DENIED Although a claim that an auto manufacturer unreasonably withheld approval for the sale of a franchise can be submitted to the New Motor Vehicle Board, a claimant is not required to exhaust that administrative remedy before litigating, and a trial court should not apply the doctrine of primary jurisdiction to stay litigation until an administrative decision is made.



KEMP v NISSAN (New Vehicle Board) 57 CA4 1527 [See: Farmers v Superior Court 2 C4 377; Miller v Superior Court 50 CA4 1665, T/AT 1/97; Hardin v New MV Bd 52 CA4 585, T/AT 3/97]



------------

--------------------

*(T/AT 12/97)

--------------------

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1764 REVIEW DENIED A homeowner's occasional gardening in a city-owned planting strip adjacent to his property was mere "neighborly maintenance" and not sufficient to establish such control as would impose upon the homeowner a duty to maintain the planting strip.



CONTRERAS v ANDERSON (Planting Strip) 59 CA4 188 [See: Isaacs v Huntington Mem 38 C3 112; Alcaraz v Vece 14 C4 1149, T/AT 3/97; Williams v Foster 216 CA3 510]



------------



1765 REVIEW DENIED A father does not owe his adult child a duty to avoid inflicting emotional distress by attempting suicide in the child's presence.



FLUHARTY v FLUHARTY (Attempted Suicide) 59 CA4 484 [See: Dillon v Legg 68 C2 728; Thing v LaChusa 48 C3 644; Molien v Kaiser 27 C3 916; Burgess v Superior Court 2 C4 1064; Mercado v Leong 43 CA4 317, T/AT 4/96 Rowland v Christian 69 C2 108]



------------



1766 A mother can maintain an action for negligent infliction of emotional distress against an obstetrician whose negligence caused the stillbirth of her fetus.



ZAVALA v ARCE (Stillborn) 58 CA4 915 [See: Burgess v Superior Court 2 C4 1064; Justus v Atchison 19 C3 564]



------------



1767 Skiers assume the inherent risks of their activity, and the Placer County Skier's Responsibility Code does not impose on skiers a duty of reasonable care to protect each other.



CHEONG v ANTABLIN (Skier's Code) 16 C4 1063 [See: EvC 669, Knight v Jewett 3 C4 296, T/AT 10/92; Ford v Gouin 3 C4 339, T/AT 10/92; Zubrick v Ford (Depub) T/AT 10/96; Cheong v Antablin (RevGrtd) T/AT 11/96; Placer County Code 12.130 etseq]



------------



1768 REVIEW DENIED Privette does not protect the employer of an independent contractor against direct liability to the contractor's employees for its own negligence.



GRAHN v TOSCO (Peculiar Risk Asbestos) 58 CA4 1373 [See: Privette v Superior Court 5 C4 689, T/AT 9/93]



------------



1769 An employer's alleged violation of the Alcohol and Drug Rehabilitation Act (LabC 1025) is not sufficient to support a former employee's action for wrongful termination in violation of public policy.



SULLIVAN v DELTA AIR LINES (Alcohol Rehab) 58 CA4 938 [See: LabC 1025; Foley v Interactive 47 C3 654; Gantt v Sentry 1 C4 1083; Stevenson v Superior Court 16 C4 880, T/AT 10/97]



------------



1770 REVIEW DENIED The statute of limitations established by FEHA is equitably tolled while a complaint is being investigated by EEOC and until EEOC issues a right-to-sue letter.



DOWNS v DEPARTMENT OF WATER AND POWER (Worksharing Agreement) 58 CA4 1093 [See: GovC 12965; Salgado v ARCO 823 F2 1322]



------------



1771 REVIEW DENIED The "dismissal at pleasure" provisions of the National Bank Act do not pre-empt state actions for wrongful termination under FEHA.



MARQUES v BANK OF AMERICA *(T/AT Pleasure) 59 CA4 356 [See: 12 USC 21 etseq; Wells v Superior Court 53 C3 1082; Gade v National 505 US 88; Aalgaard v Merchants 224 CA3 674]



------------



1772 A collective bargaining agent did not have the authority to bind its members to arbitrate statutory claims arising under FEHA.



TORREZ v CONSOLIDATED (Collective Bargaining) 58 CA4 1247 [See: Alexander v Gardner-Denver 415 US 36]



------------



1773 REVIEW DENIED Under an employment agreement requiring arbitration of all disputes, an employer waived its right to compel arbitration by participating in the employee's litigation and conducting extensive discovery.



DAVIS v CONTINENTAL AL (Arbitration Waiver) 59 CA4 205 [See: CCP 1281.2; Christensen v Dewor 33 C3 778; Keating v Superior Court 31 C3 584]



------------



1774 REVIEW DENIED A trial court did not abuse its discretion by refusing to award costs or attorney fees under FEHA to a plaintiff who received in a Superior Court action a judgment within the jurisdictional limits of the Municipal Court, so the court was correct in awarding costs to defendant, which had made a statutory offer of compromise that was higher than the judgment received by plaintiff.



STEELE v JENSEN (No Costs) 59 CA4 326 [See: GovC 12965; CCP 1033, 998; Dorman v DWLC 35 CA4 1808]



------------



1775 The Attorney / Client privilege and the Attorney Work Product privilege may be applied to communications and documents prepared by an attorney who was serving as an investigator for its client.



WELLPOINT v SUPERIOR COURT (Investigating Attorney) 59 CA4 110 [See: EvC 950 etseq; CCP 2018; Roberts v City 5 C4 363; Montebello Rose v ALRB 119 CA3 1; Watt Industries v Superior Court 115 CA3 802]



------------



1776 REVIEW DENIED / NAME CHANGE A litigant who filed objections to discovery demands that did not contain reference to the attorney - client privilege, thereby waived the right subsequently to assert that privilege.



SCOTTSDALE INS v SUPERIOR COURT (Privilege Waiver) 59 CA4 263 [See: CCP 2031; Korea Data v Superior Court 51 CA4 1513]



------------



1777 A hospital employee who sustained a job-related injury, which subsequently was aggravated when she fell on a wet spot on the hospital floor while there for diagnostic tests regarding the job-related injury, was not limited to workers' compensation remedies for damage resulting from aggravation of the job-related injury.



WEINSTEIN v ST MARY'S MED CTR (Injured Director) 58 CA4 1223 [See: LabC 3600-3603; Duprey v Shane 39 C2 781; Alander v VacaValley 49 CA4 1298, T/AT 11/96]



------------



1778 A child injured in utero by the negligence of its mother's employer is not restricted to workers' compensation remedies against the employer.



SNYDER v MICHAEL'S STORES (Unborn Employee) 16 C4 991 [See: LabC 3600 etseq; CivC 43.1; Bell v Macy's 212 CA3 1442; Snyder v Michael's T/AT 11/96]



------------



1779 For the purpose of determining whether the litigation privilege applies to statements made in the course of litigation, the logical connection between the statements and the litigation is a question of law, which may be determined in the affirmative, even though the maker of the statements did not regard them as logically connected to the litigation; the litigation privilege may be applied to statements made about persons who are not parties to the litigation in question.



OBOS v SCRIPPS PSYCHOLOGICAL (Dishonorable Discharge) 59 CA4 103 [See: CivC 47; Silberg v Anderson 50 C3 205]



------------



1780 REVIEW GRANTED / TRANSFERRED For the purpose of the Elder Abuse Act, an action "based on" the professional negligence of a health care provider is the same as an action "arising from" the professional negligence of a health care provider as defined by Central Pathology (see Case #0017): an action arises from or is based on professional negligence of a health care provider if it is directly related to services rendered by the provider.



MUELLER v ST JOSEPH MED CTR (Elder Abuse) 58 CA4 1531 [See: CCP 425.13; W&IC 15600 etseq; Central Pathology v Superior Court 3 C4 181, T/AT 10/92]



------------



1781 REVIEW DENIED Plaintiffs suing for inverse condemnation must establish that the property taken was theirs.



SCOTT v CITY OF DEL MAR (Beach Encroachments) 58 CA4 1296 [See: SDG&E v Superior Court 13 C4 893, T/AT 9/96; Sutfin v State 261 CA2 50]



------------



1782 REHEARING GRANTED Commencement of an action for asbestosis damage resulting from exposure to asbestos starts the statute of limitations running on actions for mesothelioma damage resulting from the same exposure.



MITCHELL v ASBESTOS CORP (Asbestosis - Mesothelioma) 59 CA4 366 [See: Barr v ACandS 57 CA4 1038, 10/97; Richmond v AP Green 55 CA4 565, T/AT 7/97; Buttram v Owens-Corning 16 C4 520, T/AT 9/97]



------------



1783 REVIEW DENIED An insurer did not act in bad faith by funding a settlement with a contribution from its insured, where the insured allegedly feared punitive damages, the insurer did not coerce the contribution, the contribution was modest and in reasonable proportion to punitive damage exposure, and the contribution was the product of collusion between the insured and claimant.



JB AGUERRE INC v AMERICAN G&L (Settlement Contribution) 59 CA4 6 [See: CivC 3294; InsC 533; PPG v Transamerica (RevGrtd) T/AT 11/96]



------------



1784 REVIEW DENIED As between a self-insured auto rental company and a renter's insurer, the renter's insurer provides primary coverage.



MERCURY v HERTZ (Primary Coverage) 59 CA4 414 [See: InsC 11580.9; Interinsurance v Spectrum 209 CA3 1243; Grand v 20th Century 25 CA4 1242, T/AT 7/94]



------------



1785 REVIEW DENIED Where a rental car company complies with statutory financial responsibility requirements by providing a cash deposit which neither rates nor describes the rental vehicle, and the rental agreement either does not provide or specifically declines to provide insurance, the driver's automobile policy is primary and the rental company's financial responsibility is secondary.



ENTERPRISE v WORKMAN'S (Rental Responsibility) 58 CA4 1543 [See: InsC 11580.9; VehC 17150 etseq; Grand v 20th Cent 25 CA4 1242, T/AT 7/94; Interinsurance v Spectrum 209 CA3 1243]



------------



1786 REVIEW DENIED When an excess carrier challenges the timeliness of notice from its insured, the fundamental issue is whether the insured acted reasonably in withholding or delaying notice, and resolution of the reasonableness issue turns on the particular facts and circumstances of the underlying claim, including, but not necessarily depending upon, resulting prejudice to the excess insurer.



PROVIDENCE v CONTAINER (Timeliness Challenge) 58 CA4 1138 [See: (Shell v Winterthur 12 CA4 715, T/AT 3/93]



------------



1787 REVIEW GRANTED For selling cellular phones below cost, liability under B&PC 17043, relating to below-cost sales, and under B&PC 17044, relating to loss leaders, like common law tort liability for intentional interference with prospective business advantage, require the specific intent to injure plaintiff; however, liability under the Unfair Competition Act (B&PC 17200) may be imposed regardless of the intent to injure plaintiff.



CEL-TECH v LA CELLULAR (Cell Phone) 59 CA4 436 [See: B&PC 17043, 17044, 17200; Western Union v First Data 20 CA4 1530, T/AT 2/94; Hladek v City 69 CA3 585; Settimo v Environ 14 CA4 842, T/AT 5/93]



------------



1788 A late-named defendant may peremptorily challenge a trial judge within ten days after its general appearance, even though the time within which other defendants may challenge has long since expired, and even though the matter has been assigned to one judge as complex litigation.



SCHOOL DISTRICT OF OKALOOSA COUNTY v SUPERIOR COURT (Late Challenge) 58 CA4 1126 [See: CCP 170.6]



------------



1789 An untimely motion to compel discovery should be denied or dismissed, even though papers submitted in opposition to the motion did not raise an objection based on timeliness.



SEXTON v SUPERIOR COURT (Untimely Motion) 58 CA4 1403 [See: CCP 2031; Standon v Superior Court 225 CA3 898]



------------



1790 REVIEW GRANTED A trial court should not award costs under CCP 1038 to a successful defendant in a civil proceeding under the California Tort Claims Act unless it finds that the action was brought in bad faith (i.e., with malice) and without probable cause.



KOBZOFF v HARBOR UCLA MED CTR (Bad Faith SJ) 59 CA4 219 [See: CCP 1038; Knight v City 4 CA4 918]



------------



1791 In view of a contractual provision choosing Hong Kong courts as the proper forum for disputes arising under the contract, a trial court should have granted a motion to stay a California action arising from the contract.



CHONG v SUPERIOR COURT (Hong Kong) 58 CA4 1032 [See: Volkswagenwerk v Superior Court 123 CA3 840; Joint Dec ... on the Question of Hong Kong, 5/27/85, 1399 U.N.T.S. 23391; Boaz v Boyle 40 CA4 700, T/AT 12/95]



------------

--------------------

*(T/AT 1/98)

--------------------

------------



1792 REVIEW DENIED Proposition 213 is constitutionally valid.



QUACKENBUSH v SUPERIOR COURT (Prop 213) 60 CA4 454 [See: CivC 3333.4; Yoshioka v Superior Court 58 CA4 972, T/AT 11/96]



------------



1793 REVIEW GRANTED A school district owes non-student pedestrians a duty to control students driving out of the school parking lot.



HOFF v VACAVILLE USD (Unsupervised Parking) 59 CA4 533 [See: EdC 44807; Rowland v Christian 69 C2 108; Dailey v LA USD 2 C3 741; Tarasoff v Regents 17 C3 425]



------------



1794 A contract for services creates a common law duty to perform in a competent and reasonable manner, and a breach of that duty may be actionable as negligence; in a negligence action based on a breach of this duty, plaintiff may recover for economic losses unrelated to personal injury or property damage.



NORTH AMERICAN CHEM v SUPERIOR COURT (Boric Acid) 59 CA4 764 [See: Wilmington v Somerset 53 CA4 186, T/AT 4/97; Roscoe Moss v Jenkins 55 CA2 369; Seely v White 63 C2 9; J'Aire v Gregory 24 C3 799]



------------



1795 The DMV is not liable for injuries resulting from its issuing a driver's license to a person who was not fit to drive, unless the DMV issued the license to someone it had determined was not fit to drive.



WASCHEK v STATE (Daytime Driver) 59 CA4 640 [See: GovC 818.4, 815.6; VehC 12805; Trewin v State 150 CA3 975; Johnson v Mead 191 CA3 156]



------------



1796 If it was based on an assumption that the reasonable person would not have made, an attorney's presentation of a claim to the wrong public agency was not the result of excusable neglect, and the court was not required to grant the claimant's petition to be relieved of claim presentation requirements.



SPENCER v MERCED COUNTY OFFICE OF ED (Wrong Agency) 59 CA4 1429 [See: GovC @ 911.2, 946.6; Bettencourt v Los Rios 42 C3 270]



------------



1797 REVIEW GRANTED Actions brought in California under the federal Emergency Medical Treatment and Active Labor Act (EMTALA) are subject to the MICRA cap.



BARRIS v COUNTY OF LA (Patient Dumping) 60 CA4 471 [See: CivC 3333.2; 42 USC 1395dd; Central Pathology v Superior Court 3 C4 181, T/AT 10/92; Power v Arlington 42 F3 851]



------------



1798 REVIEW GRANTED MICRA does not prevent the application of provisions of the Elder Abuse Act permitting the recovery of enhanced costs and attorney fees in actions based on its violation.



DELANEY v BAKER (Bed Sores) 59 CA4 1403 [See: W&IC 15600 etseq; Mueller v St Joseph Med Ctr 58 CA4 1531, T/AT 12/97]



------------



1799 DEPUBLISHED Violations of statute are independently wrongful and may support an action for interference with economic advantage, even though the statutory violations are not independently actionable by plaintiff.



STELLA v SUPERIOR COURT (Mexican Cheese) 60 CA4 299 [See: Della Penna v Toyota 11 C4 376, T/AT 12/95; Willard v Caterpillar 40 CA4 892, T/AT 6/96; PMC v Saban 45 CA4 579, T/AT 6/96; Arntz v St Paul F&M 47 CA4 464; Li Mandri v Judkins 52 CA4 326, T/AT 3/97; Bed, Bath & Beyond v La Jolla 52 CA4 867, T/AT 3/97]



------------



1800 By informing the buyer of a condominium that the complex in which it was located had water infiltration problems and that a related lawsuit was pending against the builder, the seller sufficiently placed the buyer on notice of the possibility of water infiltration into the unit being purchased and did not commit fraudulent concealment.



PAGANO v KROHN (Wet Condo) 60 CA4 1 [See: CivC 2079; Salahutdin v Valley 24 CA4 555, T/AT 6/94; Sweat v Hollister 37 CA4 603, T/AT 9/95]



------------



1801 REVIEW DENIED CivC 3482.5 prevents a private nuisance action by a farmer against a neighboring farmer who has properly conducted its commercial agricultural activity for three years or more, if the offensive activity was not a nuisance when it began and has become offensive only as a result of the plaintiff's change in crops.



SOUZA v LAUPPE (Rice Farm) 59 CA4 865 [See: CivC 3482.5; Spur v Del Webb 494 P2 700; Lennane v Franch Tax Bd 9 C4 263; Granberry v Islay 9 C4 738]



------------



1802 A clause in an employment agreement by which the employee agreed to arbitrate all claims against the corporate employer and waived all claims arising from the employment agreement, including claims for fraud and wilfull injury, against officers and directors was a limitation of liability rather than an exemption from liability and, as such, did not violate public policy and was enforceable.



FARNHAM v SUPERIOR COURT (Released Directors) 60 CA4 69 [See: CivC 1668; Baker v Suttles 220 CA3 1148; Halliday v Greene 244 CA2 482; Klein v Asgrow 246 CA2 87; Marks v Loral 57 CA4 30, T/AT 9/97; Tunkl v Regents 60 C2 92]



------------



1803 A chemist's placement, by a temporary employment agency, at a chemical company made the chemical company the chemist's special employer and restricted her to workers' compensation remedies against it for job-related injury.



WEDECK v UNOCAL (Special Employment) 59 CA4 848 [See: Riley v Southwest Marine 203 CA3 1242]



------------



1804 Although a residence employee employed by his/her parents is not entitled to workers' compensation benefits, by purchasing a liability policy containing a mandatory endorsement providing workers' compensation coverage for residence employees, the parents elect to bring the employee within the protection of workers' compensation.



STATE FARM v WCAB (Employed Son) 16 C4 1187 [See: InsC 11590; LabC 3351, 3352, 4150, 4151; Lumberman's v Wyman 64 CA3 252]



------------



1805 REVIEW DENIED A safety police officer in a county hospital, who, in connection with a workers' compensation claim, presented a doctor's certification that said he was unable to work at his usual occupation and could be employed only in a stress free environment, was judicially estopped from subsequently claiming that he was a qualified individual with a disability and was not protected by the federal Americans with Disabilities Act (ADA).



JACKSON v COUNTY (Stress Free) 60 CA4 171 [See: 42 USC 12112(a); Bultemeyer v Fort Wayne 100 F3 1281]



------------



1806 REVIEW DENIED Since a company vice president usually is authorized to inform underlings about company policy, out-of-court statements by a company vice president about a managing director's statement that older managers would be replaced by younger, more aggressive managers was admissible as a statement of a party.



O'MARY v MITSUBISHI (Aggressive Youth) 59 CA4 563 [See: EvC 1222; Peterson v Mineral King 140 C 624; Crawford v County 239 CA2 791; Johnson v Bimini 56 CA2 892; Miller v Anson-Smith 185 CA2 161]



------------



1807 An employer has the right to notify an at-will employee that his/her salary will be reduced, and if the employee continues to work after receiving such notice, a new employment contract is formed at the lower rate.



DIGIACINTO v AMERIKO-OMSERV (Unilateral Reduction) 59 CA4 629 [See: Scott v PG&E 11 C4 454, T/AT 12/95]



------------



1808 REVIEW DENIED Coldwell-Banker's advertising, and its permitting franchisees to use its logo and the word "member" in their advertising raises a question of fact about whether franchisees were apparent agents of Coldwell-Banker, which would make Coldwell-Banker vicariously liable for their torts.



KAPLAN v COLDWELL BANKER (Franchise) 59 CA4 741 [See: CivC 2300; Kaplan v Coldwell T/AT 10/97; Associated Creditors' v Davis 13 C3 374]



------------



1809 REHEARING GRANTED / REVIEW DENIED A highway common carrier of personal property owes to other users of the highway a non-delegable duty to transport the goods safely and is vicariously liable for the negligence of a subhauler with whom the carrier has contracted to transport goods.



SHERWOOD v ALAIMO (Subhauler) 59 CA4 1452 [See: VehC 34600 etseq; Taylor v Oakland 17 C2 594; Gaskill v Calaveras 102 CA2 120; Eli v Murphy 39 C2 598; Gamboa v Conti 19 CA4 663, T/AT 12/93]



------------



1810 REVEIW DENIED Even if it knew that an employee had a history of and criminal record for child molestation, a beauty college that employed an instructor to teach adults was not liable for negligent employment to a student's child who was molested by the instructor, because the history of child molestation did not make him dangerous in view of the work entrusted to him.



FEDERICO v SUPERIOR COURT (Beauty Instructor) 59 CA4 1207 [See: REST(2) Agency 213; Lisa M v Henry Mayo 12 C4 291, T/AT 1/96; Evan F v Hughson 8 CA4 828, T/AT 10/92]



------------



1811 A liability carrier had no obligation to defend actions against the insured based on sexual molestation or acts so intertwined with molestation as to be part of it, but it did have an obligation to defend actions based on conduct that could be found to be negligent and non-sexual.



STATE FARM v CENTURY (Molesting Teacher) 59 CA4 648 [See: Gray v Zurich 65 C2 263; JC Penney v MK 52 C3 1009; InsC 533; Horace Mann v Barbara B 4 C4 1076, T/AT 593; Jane D v Ordinary Mut 32 CA4 643, T/AT 3/95]



------------



1812 REVIEW DENIED An all risk policy that covered loss resulting from arson but excluded loss resulting from a brush fire, did not cover loss resulting from a brush fire started by arsonists.



PIEPER v COMMERCIAL (Arson Brush Fire) 59 CA4 1008 [See: Sabella v Wisler 59 C2 21; AIU v Superior Court 51 C3 807]



------------



1813 REVIEW DENIED The phrase "lessor's risk only," as used in a CGL policy did not exclude coverage for defamation allegedly committed while the insured was attempting to negotiate purchase and or financing of realty.



FEURZEIG v INS CO OF THE WEST (Lessor's Risk) 59 CA4 1276 [See: Bank of the West v Superior Court 2 C4 1254, T/AT 9/92]



------------



1814 REVIEW DENIED -- NAME CHANGE FROM UNITED PACIFIC Multiple insurers of the same insured are neither joint-tortfeasors nor co-obligors under the same debt, so the good faith settlement provisions of CCP 877 do not bar non-settling carriers from seeking indemnity from settling carriers with whom the insured settled coverage disputes and bad faith claims.



ROHR v FIRST STATE (Multiple Insurers) 59 CA4 1480 [See: CCP 877; Topa v Fireman's 39 CA4 1331, T/AT 12/95; Hartford v Superior Court 29 CA4 435, T/AT 11/94; Herrick v Canadian 29 CA4 753, T/AT 11/94; Pacific Estates v Superior Court 13 CA4 1561, T/AT 5/93]

------------



1815 REVIEW DENIED In a dispute relating to coverage triggers between the manufacturer of artificial implantable heart valves and its insurers, the insured was entitled to discover from the insurers the identities of other medical device manufacturers who had notified the insurers of potential or pending claims, the types of devices involved in those claims, and what events had triggered potential coverage.



PFIZER v SUPERIOR COURT (Heart Valve) 59 CA4 840 [See: CCP 2017; Glenfed v Superior Court 53 CA4 1113, T/AT 5/97]



------------



1816 REVIEW GRANTED A trial court may consolidate an Uninsured Motorist claim with litigation arising from the same accident, but if it does so, the consolidated claim should be submitted to arbitration; the arbitrator's decision on the Uninsured Motorist claim will be binding, but the decision on the litigation will be non-binding and subject to request for trial de novo.



MERCURY v SUPERIOR COURT (U/M Consolidation) 59 CA4 1463 [See: Prudential v Superior Court 36 CA4 275, T/AT 8/95; Gordon v GROUP 49 CA4 998, T/AT 11/96]



------------



1817 REVIEW GRANTED An arbitrator's decision may not be given the effect of collateral estoppel in a proceeding involving a non-party to the arbitration.



VANDENBERG v SUPERIOR COURT (Arbitration Estoppel) 59 CA4 898 [See: Moncharsh v Heily 3 C4 1]



------------



1818 When a defendant challenges the in personam jurisdiction of the court by bringing a motion to quash service of process, the burden is on the plaintiff to prove the existence of jurisdiction by proving the facts requisite to an effective service.



FLOVEYOR v SUPERIOR COURT (British Service) 59 CA4 789 [See: Dill v Berquist 24 CA4 1426, T/AT 6/94]



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1819 REVIEW DENIED In reversing a judgment based on a stipulated reversal, the First District suggested that the Supreme Court reconsider its ruling in Neary, and in a dissenting opinion, Presiding Justice Kline said that he would never grant a stipulated reversal unless specifically directed to do so by the Supreme Court.



MORROW v HOOD (Stipulated Reversal) 59 CA4 924 [See: Neary v Regents 3 C4 273, T/AT 10/92; Auto Equity Sales v Superior Court 57 C2 450]



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1820 A stipulated final judgment following summary adjudication does not make the order granting summary adjudication appealable.



FOUR POINT v NEW WORLD (Stipulated Judgment) 60 CA4 79 [See: Don Jose's v Truck 53 CA4 115, T/AT 4/97; Jackson v Wells Fargo 54 CA4 240, T/AT 5/97]



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1821 Pre-judgment interest awarded pursuant to CCP 3291 is not an item of damage, so post-judgment interest cannot be awarded on it.



STEINFELD v FOOTE-GOLDMAN (Pre Judgment Interest) 60 CA4 13 [See: CCP 33291, 998; Lakin v Watkins 6 C4 644, T/AT 2/94; Mendez v Kurten 170 CA3 481]



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1822 REVIEW DENIED The provisions of CCP 170.6, regarding peremptory challenge of a trial judge following reversal of a "trial court's decision," apply following reversal of judgment based on a jury's verdict.



PANDAZOS v SUPERIOR COURT (Trial Court's Decision) 60 CA4 234 [See: CCP 170.6; Walters v Weed 45 C3 1]



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1823 The Judicial Council may not permit electronic recording as a method of creating the official record of Superior Court proceedings; it has no authority to promulgate rules authorizing such recording, and may not spend taxpayers' funds on electronic recording of Superior Court proceedings.



CA COURT REPORTERS v JUDICIAL COUNCIL (Electronic Recording) 59 CA4 959 [See: CA Court Reporters v Judicial Council 39 CA4 15, T/AT 11/95]



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1824 A deposition transcript is a work product, not a business record, of the stenographic reporter who prepared it, and so, even if the reporter demands an exorbitant fee for copies, it cannot be obtained for self-copying by service of a business records subpoena.



URBAN PACIFIC v SUPERIOR COURT (Exorbitant Transcript) 59 CA4 688 [See: CCP 2020]



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1825 An attorney who was aware that all claims against a railroad were referred to in-house counsel did not commit misconduct by interviewing a railroad employee prior to filing action against the railroad, because without actual knowledge that such house counsel represents the person being interviewed when that interview is conducted, a lawyer should not be at risk of disciplinary action because s/he "should have known" that an opposing party was represented or would be represented at some time in the future.



TRUITT v SUPERIOR COURT (RR Interview) 59 CA4 1183 [See: CA R of Prof Cond 2-100; Jorgensen v Taco Bell 50 CA4 1398, T/AT 12/96]



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1826 A witness testifying at a videotaped deposition may be required to give non-verbal answers and to re-enact the accident.

EMERSON ELECTRIC v SUPERIOR COURT (Videotaped Reenactment) 16 C4 1101 [See: CCP 2025; Emerson v Superior Court T/AT 11/96; Stermer v Superior Court 20 CA4 777, T/AT 2/94]



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*(T/AT 2/98)

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1827 REVIEW DENIED A fire causing damage to property was not a foreseeable result of providing a fifteen-year-old with a cigarette; the statute that prohibits furnishing cigarettes to minors was not designed to protect property owners against the risk of fire, so in an action for damages resulting from fire, the negligence of one furnishing a minor with cigarettes in violation of the statute cannot be presumed.



WAWANESA v MATLOCK (Burning Poles) 60 CA4 583 [See: EvC 669; PenC 308; Palsgraf v LIRR 248 NY 339; Mangini v RJ Reynolds 7 C4 1057]



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1828 REHEARING GRANTED / SEE CASE # 1999 A seller of real estate who knows that the buyer intends to resell may be liable to a remote purchaser for fraudulently concealing facts known to the seller and not reasonably discoverable by the immediate or remote purchaser.



SHAPIRO v SUTHERLAND (Noisy Neighbors) 60 CA4 666 [See: CivC 1102.6, 1102.5; Goodman v Kennedy 18 C3 335; Sweat v Hollister 37 CA4 603, T/AT 9/95; Geernaert v Mitchell 31 CA4 601, T/AT 2/95; Pagano v Krohn 60 CA4 1, T/AT 1/98]



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1829 REVIEW DENIED Hedonic damages (i.e., damages for the lost pleasure of life) are recoverable as part of a claim for pain and suffering; expert testimony should not be admitted for the purpose of placing a monetary value on hedonic damages.



LOTH v TRUCK-A-WAY (Hedonic Formula) 60 CA4 757 [See: Henninger v So Pac 250 CA2 872; Scally v Garratt 11 CA 138]



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1830 REVIEW GRANTED A contract to perform a service creates a common law duty to perform reasonably, and a breach of this duty may be the subject of a negligence action; if the breach threatened the physical safety of plaintiff, damages for emotional distress may be recoverable.



ERLICH v MENEZES (Leaky Dream House) 60 CA4 1357 [See: North Am Chem v Superior Court 59 CA4 764, T/AT 1/98; Roscoe Moss v Jenkins 55 CA2 369; Potter v Firestone 6 C4 965, T/AT 9/93]



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1831 DEPUBLISHED In an insurance bad faith claim, emotional distress damages are not recoverable unless plaintiff sustained an actual economic loss; if benefits were delayed but eventually received by plaintiff, plaintiff must plead economic loss with particularity.



PELKEY v ALLSTATE (Bad Faith Damage) 60 CA4 898 [See: Universal Sales v Cal Mfg 20 C2 751; Comunale v Traders 50 C2 654; Foley v Interactive 47 C3 654]



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1832 REVIEW DENIED Loss of use of funds for an 81 day period occasioned by an insurer's delay in payment of benefits was not a sufficient economic loss to justify the recovery of emotional distress damages in an action for insurance bad faith.



MAXWELL v FIRE INS EXCH (Loss of Use) 60 CA4 1446 [See: Hand v Farmers 23 CA4 1847, T/AT 5/94; Waters v USAA 41 CA4 1063, T/AT 2/96; Pelkey v Allstate 60 CA4 898, T/AT 2/98]



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1833 Under CivC 2941, a trustee's failure to timely reconvey the trust deed and record a reconveyance upon satisfaction of the underlying obligation may result in liability for a civil penalty of $300 and damages for emotional distress, but unless the plaintiff pleads and proves emotional distress, s/he is restricted to the statutory remedy of $300.



PANAGOTACOS v B OF A (Reconveyance) 60 CA4 851 [See: CivC 2941; Pintor v Ong 211 CA3 837]



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1834 Under the Unruh Civil Rights Act, a trial court has the power to fix the amount of attorney fees awarded to a successful plaintiff, but does not have the power to deny recovery of fees.



ENGEL v WORTHINGTON (Same Sex Photo) 60 CA4 628 [See: CivC 52; Engel v Worthington (DEPUB) T/AT 12/93]



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1835 REVIEW DENIED The Judicial Conference did not have authority to make a rule permitting courts to award attorney fees as a sanction against one who procures a mistrial by disobeying an order of the court.



TRANS-ACTION v FIRMATERR (Unauthorized Sanction) 60 CA4 352 [See: CA RofC 227]



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1836 Under an implied agreement not to terminate employment without cause, the employer's reasonable and good faith belief that an employee is guilty of improprieties that would be cause for termination is sufficient cause for termination.



COTRAN v ROLLINS (Unproved Harassment) 17 C4 93 [See: Foley v Interactive 47 C3 654; Pugh v See's 116 CA3 311; Scott v PG&E 11 C4 454, T/AT 12/95; Wilkerson v Wells Fargo 212 CA3 1217; Cotran v Rollins (RG) T/AT 11/96; Hicks v Pac Bell (RG) T/AT 3/97]



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1837 A learning disability that prevents an individual from reading and writing might qualify as a mental disability under FEHA; an employer cannot be found to have terminated an employee on the basis of a disability unless the employer knew of the disability at the time of the termination.



PENSINGER v BOWSMITH (Reading Disability) 60 CA4 709 [See: Brundage v LA Office 57 CA4 228; 42 USC 12101 etseq; GovC 12940, 12926]



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1838 REVIEW DENIED An employer whose negligence contributed to an employee's job related injury may not have a right to reimbursement of workers' compensation benefits from the proceeds of the employee's third party action against others responsible, but defendants in such an action cannot cross-complain against the employer for indemnity and contribution.



STATE v SUPERIOR COURT (Employer's Indemnity) 60 CA4 659 [See: LabC 3864; Witt v Jackson 57 C2 57]



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1839 REVIEW DENIED The WCAB does not have jurisdiction over workers' compensation claims made by employees of Indian tribes.



MIDDLETOWN v WCAB (Indian Immunity) 60 CA4 1340 [See: 28 USC 1360; Boisclair v Superior Court 51 C3 1140]



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1840 DEPUBLISHED Under the peculiar risk doctrine, one who hires an independent contractor who has not complied with the requirements of the workers' compensation law may be vicariously liable to an employee of the contractor for injuries resulting from the contractor's negligence; Privette does not apply to prevent such vicarious liability.



ANDREINI v SUPERIOR COURT (No WC) 60 CA4 1415 [See: LabC 3607; Privette v Superior Court 5 C4 689, T/AT 9/93; Woolen v Aerojet 57 C2 407]



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1841 REVIEW DENIED Statutory immunity protects public entities and their employees from liability for damage resulting from violation of the Public Safety Officers Procedural Bill of Rights Act, but does not prevent an action for an injunction under the Act or an action for damages under the federal Civil Rights Act.



BENACH v COUNTY OF LA (Sheriff's Helicopter) 60 CA4 637 [See: GovC 3300 etseq, 821.6; 42 USC 1983; Asgari v City 15 C4 744, T/AT 7/97; Kemmerer v County 200 CA3 1426; Martinez v State 444 US 277]



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1842 REVIEW DENIED If a condition of public property results from a design that was properly approved by an official body and could have been approved by a reasonable official body, public entities and their employees are immune from liability for damage resulting from the condition; unless there has been a physical change in circumstances, design immunity is not lost because the entity recognizes that the design could be made safer by the addition of precautionary devices.



DOLE v STATE (Burning Body) 60 CA4 486 [See: GovC 830.6; Baldwin v State 6 C3 424; Bane v State 208 CA3 860; Compton v City 12 CA4 591, T/AT 3/93]



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1843 REVIEW DENIED Public entities are immune from liability for injuries caused by conditions of paved paths furnishing recreation or providing access to recreation or scenic areas.



CARROLL v COUNTY OF LA (Bicycle Path) 60 CA4 603 [See: Giannuzzi v State 17 CA4 462, T/AT 8/93; Armenio v County 28 CA4 417, T/AT 10/94; State v Superior Court 32 CA4 325, T/AT 3/95]



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1844 REVIEW DENIED The litigation privilege of CivC 47 applies to knowingly false and malicious statements made by a physician to a workers' compensation carrier in connection with a patient's workers' compensation claim.



HARRIS v KING (WC Medical Report) 60 CA4 1185 [See: CivC 47; Urbaniak v Newton 226 CA3 1128; Edwards v Centex 53 CA4 15, T/AT 4/97]



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1845 Money spent for site investigation by a defendant in a ground contamination action was a defense expense, for which an insurer with an obligation to defend has a duty to reimburse the insured.



AEROJET v TRANSPORT INDEMNITY (TCE) 17 C4 38 [See: AIU v Superior Court 51 C3 807; Gray v Zurich 65 C2 263; Buss v Superior Court 16 C4 35, T/AT 8/97; Aerojet v Transport T/AT 7/96]



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1846 REVIEW DENIED Under a property insurance policy covering "loss or damage caused by or resulting from risks of direct physical loss involving collapse of a building or any part of a building," coverage extends to damage resulting from imminent collapse as well as actual collapse.



DOHENY WEST v AMERICAN GUAR (Collapse Coverage) 60 CA4 400 [See: Bank of the West v Superior Court 2 C4 1254, T/AT 9/92; AIU v Superior Court 51 C3 807; Sabella v Wisler 59 C2 21]



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1847 REVIEW DENIED Under the Public Utilities Act, California courts lack subject matter jurisdiction over damage claims based upon exposure to electric and magnetic fields (EMF's) that are within parameters established by the PUC.



FORD v PGE (EMF's) 60 CA4 696 [See: Waters v Pac Tel 12 C3 1; SDGE v Superior Court 13 C4 893, T/AT 4/95]



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1848 REVIEW DENIED Mandatory relief provisions of CCP 473 apply when, due to the excusable negligence of counsel, a party loses the opportunity to participate in an arbitration and the award becomes final.



YEAP v LEAKE (Missed Arbitration) 60 CA4 591 [See: CCP 473; Ayala v Southwest 7 CA4 40]

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1849 REVIEW DENIED In a case in which the court did not notify the parties until after the trial date had been changed on the court's own motion and in which the court was under misapprehensions about the number of continuances granted at the request of plaintiff, about the date originally set for trial, and about the validity of plaintiff's reason for being unavailable, it was an abuse of discretion for the court