Published Decisions

Business Published Decisions

Advantage Medical Services, LLC v. Hoffman (2008) 160 Cal. App. 806; 72 Cal. Rptr. 3d 935. Arbitration award was vacated because the arbitrator failed to disclose his business relationship with one of the party’s insurers, which “could cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial.

APSB Bancorp v. Thornton Grant (1994) 26 Cal. App.4th 926, 31 Cal. Rptr. 2d 736. Judgment is affirmed. Issue: The appellant was not an agent of the respondent and is not entitled to mandatory indemnification.

Bertero v. National General Corporation (1974) 13 Cal. 3d 43, 529 P. 2d 608, 118 Cal. Rptr. 184, 65 A.L.R. 3d 878. Judgment is modified by striking from the award of compensatory damages the sum of $25,000 and as so modified is affirmed. Issue: A corporation may be liable for punitive damages only for malicious acts done by its agents and with the knowledge or under the direction of its corporate officials. View Full Text

Ford v. Hites (1975) 47 Cal. App. 3d 828, 121 Cal. Rptr. 131. Judgment of dismissal affirmed. Issue: Retailer of automobile cannot shift liability for selling defective automobile to driver using vehicle in manner exposing defective design.

Held v. Arant (1977) 67 Cal. App. 3d 748, 134 Cal Rptr. 422. Judgment is affirmed. Issue: A lawyer sued for professional negligence may not state a cause of action for indemnity against another lawyer subsequently retained by suing client in the same matter on the theory that the second lawyer’s negligence enhanced rather than reduced the initial loss.

Information Control Corporation v. United Airlines Corporation (1977) 73 Cal. App.3d 630, 140 Cal. Rptr. 877. Judgment for plaintiff affirmed. Issue: Willful breach of shipment contract by carrier entitles shipper to reimbursement of the value of the shipment exceeding limits of liability expressed in contract.

Jackson v. Garmon (1990) 217 Cal. App. 3d 860, 266 Cal. Rptr. 201. Judgment reversed. Issue: Once a court grants a plaintiff’s motion for election to arbitrate and places the action on the arbitration list, if it was either placed there or remained there for more than four years and six months after the action was originally filed, Code of Civil Procedure section 1141.17 subd. (b) will apply to toll the five-year diligent prosecution statute.

Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal. 3d 1, 774 P.2d 762259 Cal. Rptr. 733. Judgment: Petition for writ of mandate granted. Issue: Workers Compensation Appeals Board is exclusive forum for resolving dispute over alleged unreasonable delay or refusal to pay compensation benefits. View Full Text

Marshall v. Department of Water and Power of the City of Los Angeles (1990) 219 Cal. App. 3d 1124, 268 Cal. Rptr. 559. Judgment is affirmed, except for two plaintiffs are remanded for consideration of attorneys’ fees. Issue: The trial court abused its discretion by applying a uniform standard to all plaintiffs’ requests for attorney fees as to their cause of action for inverse condemnation and disregarding the actual dollar impact on the individual plaintiffs.

Meredith v. United Airlines (1966) 41 F. R. D. 34, 10 Fed. R. Serv. 2d 306. Judgment: Lockheed’s Motion to Dismiss is denied. Issue: The amended complaint related back to the date of the filing of the original complaint under the Federal Rule of Civil Procedure dealing with the relationback of amended and supplemental pleadings, as the rule was amended in 1966, or as it existed prior to the 1966 amendment, so that the manufacturer could not have the amended complaint dismissed under California one-year limitation statute.

Ortiz v. South Bend Lathe (1975) 46 Cal. App. 3d 842, 120 Cal. Rptr. 556. Judgment is reversed. Issue: The machinery corporation had, for adequate and valid consideration, acquired the assets of another corporation under the circumstances that did not warrant, as an exception to the general rule against it, the involuntary imposition on it of the preexisting liability of the manufacturing corporation. View Full Text

Perez v. Southern Pacific Transportation Company (1990) 218 Cal. App. 3d 462, 327 Cal. Rptr. 100. Judgment is affirmed. Issue: In an injured child’s personal injury action against a railroad for injuries suffered when the child fell when trying to board a moving train, California Civil Code section 1714.7, which grants immunity against suits brought by trespassers, applies. Plaintiff was a trespasser.

Rubinstein v. Barnes (1987) 195 Cal. App. 3d 276, 240 Cal. Rptr. 535. Judgment is affirmed. Issue: In legal malpractice action, application of statute of limitations in CCP section 340.6 was proper in that plaintiff had four years after enactment of section 340.6 to bring suit and that period of time was reasonable.

Schultz v. Superior Court for Los Angeles County (1980) 104 Cal. App. 3d 250, 163 Cal Rptr. 504. Judgment: Writ of mandate issued. Issue: Upon the showing of a settlement by one asserting that settlement bars all claims for contribution or comparative indemnity, the burden of proof shifts to the nonsettling tortfeasor to show the settlement was not made in good faith.

Schwartz v. McGraw-Edison Company (1971) 14 Cal. App.3d 767, 92 Cal. Rptr. 776, 66 A.L.R. 3d 808. Judgment is affirmed. Issue: Plaintiff not entitled to recover damages after the alleged successor of a corporation had not expressly assumed liability.

Scotsman Mfg Company v. Superior Court In and For Orange County (1966) 242 Cal. App. 2d 527, 51 Cal. Rptr. 511. Judgment: A writ of prohibition issued. Issue: Writ granted to restrain the Superior Court of Orange County from enforcing a discovery order requiring petitioner to produce an expert’s report on the grounds the report was protected work product.

Sheehy v. Southern Pacific Transportation Co. (9th Cir. 1980) 631 F. 2d 649, 7 Fed. R. Evid. Serv. 99. Judgment was reversed and remanded. Issue: Evidence of an employee receiving disability pension payments is inadmissible to show the extent or duration of an injury or to show motive for not returning to work.

Seay v. International Association of Machinists (1973) 360 F. Supp. 123. Judgment: Motion to compel answers denied. Issue: No statement or admission found in written interrogatories in unrelated case can be admitted as evidence or used in any other proceeding when stipulation in other action indicates to be used in that action only.

Southern Cal. Edison Co., v. Harbor Insurance Co. (1978) 83 Cal. App. 3d 747, 148 Cal. Rptr. 106. Judgment for insurer affirmed. Issue: Policy exclusion for cost of making good faulty workmanship, construction or design applied to differential settlement of foundation at steam generation plant.

Speer, Inc. v. Superior Court for Los Angeles County (1969) 272 Cal. App. 2d 32, 77 Cal.Rptr. 152. Judgment: Peremptory writ of mandate issued. Issue: The trial court abused its discretion in denying a motion to dismiss made by petitioner pursuant to the discretionary provisions of Code of Civil Procedure section 583 for dismissal for failure to bring action to trial within two years.

Stone v. The Regents of the University of California (1999) 77 Cal. App. 4th 736, 92 Cal. Rptr. 2d 94. Judgment is reversed. Issue: Where alleged conduct occurs outside the scope of employment, a company is entitled to deny an employer’s request for defense against a suit arising out of employment.

Thoren v. Johnston & Washer (1972) 29 Cal. App. 3d 270, 105 Cal. Rptr. 276. Judgment is affirmed. Issue: The testimony of a witness can be excluded from trial when his name had been willfully omitted from the answer to the interrogatory.

Torres v. Union Pacific Railroad Co. (1984) 157 Cal App. 3d 499, 203 Cal. Rptr. 825. Judgment of dismissal of cross-complaints affirmed. Issue: Whether a settlement sum is grossly disproportionate to a settling tortfeasors’ liability is determined based on facts known at time of settlement.

United Pacific Insurance Co. v. Southern Cal. Edison Co. (1985) 163 Cal. App. 3d 700, 209 Cal. Rptr. 819. Judgment affirmed. Issue: Strict product liability doctrine is inapplicable to high voltage electric transmission facilities owned and operated by privately owned public utilities. View Full Text

Young v. Aro Corporation (1973) 36 Cal. App. 3d 240, 111 Cal. Rptr. 535 Judgment is reversed. Issue: Plaintiff is entitled to instruction on the doctrine of strict liability as to repairer of grinder that caused injury.

* Reprinted from Westlaw with permission of West Group. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://westlaw.com. If the full text of the decision you are interested in is not posted, you may find it by searching for its citation number at: http://caselaw.LP.findlaw.com/CA

Estate and Tax Planning Published Decisions

In re Creed’s Estate. Creed v. Knoll (1967) 255 Cal. App. 2d 80, 63 Cal. Rptr. 80 Judgment is affirmed. Issue: A mere change of the property described as a specific bequest in the will does not ipso facto constitute an ademption.

Lion Country Safari v. The Irvine Company (1991) 124 B.R. 566, 24 Collier Bankr. Cas. 2d 1860, 21 Bankr. Ct. Dec. 728. Judgment: Motion denied. Issue: The Bankruptcy Court denied jury trial to Chapter 11 debtor because both parties’ claims arise out of the same transaction.

Los Angeles County v. Superior Court for Los Angeles (1967) 253 Cal. App. 2d 670 62 Cal. Rptr. 435. Judgment: Writ of prohibition granted. Issue: Proceeding in prohibition to restrain the superior court from issuing a preliminary injunction and from taking any further proceedings in a pending action.

Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal. 3d 1, 259 Cal. Rptr. 733. Judgment: Petition for writ of mandate granted. Issue: Workers Compensation Appeals Board is exclusive forum for resolving dispute over alleged unreasonable delay or refusal to pay compensation benefits. View Full Text

Rowe v. Superior Court (1993) 15 Cal. App. 4th 1711, 19 Cal. Rptr. 2d 625. Judgment: A writ of mandate issued. Issue: Plaintiff is required to demonstrate the existence of sufficient evidence to establish a prima facie right to recover punitive damages.

Shearer v. Superior Court of Los Angeles County (1977) 70 Cal. App. 3d 424, 138 Cal. Rptr. 824. Judgment: Writ of mandate issued. Issue: The statutory time for filing petition for writ of mandate is extended by Code of Civil Procedure section 1013 governing service by mail.

Wollersheim v. Church of Scientology of California (1992) 6 Cal. Rptr. 2d 532, (previously published at: 4 Cal. App. 4th 107410, Cal. App. 4th 37015, Cal. App. 1426) Judgment is affirmed in part and reversed in part with remittitur. Issue: It is proper and constitutional for the court to reduce a punitive damage award through remittitur rather than to reverse the entire punitive damages award for excessiveness. View Full Text

Insurance Published Decisions

Adelman v. Associated International Insurance Co. (2001) 90 Cal. App.4th 352, 108 Cal. Rptr. 2d 788. Judgment of dismissal affirmed. Issue: Negligent claims handling does not give rise to a cause of action against insurer by third party not a party to insurance contract, even if injury is foreseeable. View full text

Aetna Casualty & Surety Company v. Safeco Insurance Company (1980) 103 Cal. App.3d 694, 163 Cal. Rptr. 219. Judgment for defendants affirmed. Issue: Coverage for shooting that occurred while gun being loaded in car not excluded by automobile use exclusion in homeowner’s policy, and no coverage exists under automobile liability policies for that incident.

Atchison, Topeka & Santa Fe R. Co. v. Flintkote Co. (1967) 256 Cal. App. 2d 764, 64 Cal. Rptr. 675. Judgment for cross-complainant reversed due to jury instruction error. Issue: Jury should have been instructed on the vicarious liability of a cargo shipper for negligence of truck owner following collision between truck and train.

Aurelio Arellano v. Geronimo C. Moreno (1973) 33 Cal. App. 3d 877, 109 Cal. Rptr. 421. Judgment for defendant is affirmed. Issue: The driver of a vehicle, whether operable or inoperable, is responsible for its safety on the road, including meeting lighting requirements.

Austero v. National Casualty Co. (1978) 84 Cal. App. 3d 1, 148 Cal. Rptr. 653. Judgment of insurer bad faith reversed. Issue: The test for determining whether a first party insurer acts in bad faith is whether its refusal to pay policy benefits was reasonable. View full text

Austero v. National Casualty Co. (1976) 62 Cal. App.3d 511, 133 Cal. Rptr. 107. Judgment of dismissal affirmed. Issue: Implied covenant of good faith and fair dealing does not extend to persons who are not parties to insurance contract. View full text

Bank of the West v. Superior Court (1992) 2 Cal. 4th 1254, 833 P.2d 545, 10 Cal. Rptr. 2d 538. Appellate court decision vacating trial court judgment in favor of liability insurer reversed. Issue: Insurance coverage for advertising injury due to unfair competition is limited to common law claims, and requires causal connection between advertising activities and advertising injury. View full text

Bao Tan Diep v. California Fair Plan Association, (1993) 15 Cal. App. 4th 1205, 19 Cal. Rptr. 2d 591. Judgment for insurer affirmed. Issue: The word “roof” in a property policy could not have been reasonably construed by the parties to include a temporary cover of plastic sheeting. View full text

California Fair Plan Association v. Politi (1990) 220 Cal. App. 3d 1612, 270 Cal. Rptr. 243. Judgment for insurer affirmed except award of attorney fees reversed. Issue: Insurer is limited to contract damages in an action against its insured for breach of the covenant of good faith and fair dealing.

Castro v. E.A. Irish (1967) 249 Cal. App. 2d 390, 57 Cal. Rptr. 477. Judgment for defendant affirmed. Issue: Proper jury instruction on imminent peril.

Castorena v. Superior Court (1982) 135 Cal. App. 3d 1014, 186 Cal. Rptr. 14. Judgment: Petition granted and writ issued a writ directing the trial court to vacate its order denying defendant’s motion to dismiss. Issue: Plaintiff’s failure to bring the matter to trial within the period of time described in Code of Civil Procedure section 583, subdivision (b) will result in a dismissal.

Chateau Chamberay Homeowners Assoc. v. Associated International Ins. Co. (2001) 90 Cal. App. 4th 335, 108 Cal. Rptr. 2d 776. An insurer denying or delaying payment of policy benefits due to the existence of a “genuine dispute” as to the existence of coverage liability is not liable in bad faith even though it might be liable for breach of contract. View full text

Chicken Delight of California v. State Farm Mutual Auto. Ins. Co. (1973) 35 Cal. App. 3d 841, 111 Cal. Rptr. 79. Judgment for insurer affirmed. Issue: Insured not entitled to recover damages where liability insurer’s wrongful failure to defend does not increase amount of settlement or cost of defense.

Community Assisting Recovery, Inc. v. Aegis Security Insurance Co. (2001) 92 Cal. App. 4th 886, 112 Cal. Rptr. 2d 304. Judgment of dismissal affirmed. Issue: Insurer’s use of replacement cost less depreciation to determine value of a property loss is not an unfair business practice.View full text

Diamond v. Insurance Company of North America (1968) 267 Cal. App. 2d 415, 72 Cal. Rptr. 862. Judgment of dismissal reversed. Issue: Appellate court overruled demurrer because of Plaintiff’s claim of extrinsic evidence to interpret the insurance contract.

E.M.M.I. Inc. v. Zurich American Insurance Co. (2004) 32 Cal.4th 465, 468, 482-483. Judgment for defendants affirmed. Issue: Coverage from theft of jewelry from car does not apply when person designated to carry jewelry is not in or upon the vehicle transporting the jewelry.

Fisher v. Superior Court (1980) 103 Cal. App. 3d 434, 163 Cal. Rptr. 47. Order denying motion to try issue of good faith settlement prior to trial of liability action vacated. Issue: Issue of good faith settlement between plaintiff and settling tortfeasor should be tried separately and in advance of the trial of the tort issues.

Fletcher v. Pacific Indemnity Group (1972) 26 Cal. App. 3d 568, 102 Cal. Rptr. 868. Judgment for defendant affirmed. Issue: A contractual suit limitation period run from date insurer communicates unconditional denial of claim.

Gruenberg v. Aetna Insurance Company (1973) 9 Cal. 3d 566, 510 P. 2d 1032, 108 Cal. Rptr. 480. Judgment of dismissal reversed. Issue: An insurer’s duty of good faith and fair dealing is unconditional and independent of the insured’s performance of contractual obligations.

Henry v. Associated Indemnity Corp. (1990) 217 Cal. App. 3d 1405, 266 Cal. Rptr. 578. Judgment of dismissal affirmed in part and reversed in part. Issue: Insured may not state a contract or breach of implied covenant cause of action against an insurance adjustor, and Insurance Code section 790.03 does not form the basis for a private cause of action under a first party policy. View full text

Herman v Eagle Star Insurance (1966) 283 F. Supp. 33, Judgment Motion for new trial denied. Issue: No new trial allowed on the basis that polygraph evidence was inadmissible since Defendant stipulated in advance of taking to its use. View full text

Hoffman v. State Farm Fire & Casualty Co. (1993) 16 Cal. App.4th 184, 19 Cal. Rptr.2d 809. Judgment of dismissal affirmed. Issue: Property loss must manifest during term of policy for coverage to exist, and diminution in value of real property located in landslide zone is not covered under property policy. View full text

Information Control Corporation v. United Airlines Corporation (1977) 73 Cal. App.3d 630, 140 Cal. Rptr. 877. Judgment affirmed. Issue: Willful breach of shipment contract by carrier entitles shipper to reimbursement of the value of the shipment exceeding limits of liability expressed in contract.

Interinsurance Exchange of The Auto. Club of Southern California v. Narula (1995) 33 Cal. App. 4th 1140, 39 Cal. Rptr. 2d 752. Judgment of dismissal is affirmed. Issue: The plaintiff failed to allege facts sufficient to establish that it complied with the statutory requirements and was still denied due process.

Lexington Insurance Co. v. Allianz Insurance Co. (9th Cir. 2006) 177 Fed. Appx. 572; 2006 U.S. Appl Lexis 9666. For an insurer to be entitled to equitable contribution from other insurers, the policies in question must insure the same party, the same interest, and the same risk.

Neufeld v. Balboa Insurance Co. (2000) 84 Cal. App.4th 759, 101 Cal. Rptr.2d 151. Judgment for insurer reversed. Issue: Insurer can be estopped from raising the one-year contractual suit limitations defense if it did not comply with insurance regulations requiring disclosure to insured of all time limits affecting claim.

Ortiz v. South Bend Lathe (1975) 46 Cal. App. 3d 842, 120 Cal. Rptr. 556. Judgment is reversed. Issue: The machinery corporation had, for adequate and valid consideration, acquired the assets of another corporation under the circumstances which did not warrant, as an exception to the general rule against it, the involuntary imposition on it of the preexisting liability of the manufacturing corporation.

Pacific Estates, Inc. v. Superior Court (1993) 13 Cal. App. 4th 1561, 17 Cal. Rptr.2d 434. Petition for writ of mandate granted. Issue: For purposes of determining good faith settlement under Cal. Code of Civil Procedure section 877.6, an insurer is not barred as a co-obligor from making a claim of bad faith against the settling parties.

Peter v. Travelers Insurance Company (1974) 375 F. Supp. 1347. Issue: Where primary liability insurer breached its duty to settle within policy limits and such breach of duty caused loss to excess liability insurer, primary insurer was liable to excess carrier for amount which excess insured was obliged to pay in discharge of its insured’s liability.

Puritan Insurance Company v. Superior Court (1985) 171 Cal. App. 3d 877, 217 Cal. Rptr. 602. Judgment: Writ of mandate issued directing Respondent to vacate its sanction order. Issue: The Plaintiff’s failure to produce an allegedly defective drive shaft, although it had been lost, constituted a refusal to obey a discovery order. However the court abused it’s discretion in precluding plaintiff from introducing photos and expert testimony about those photos into evidence. The trial court order was excessive with respect to plaintiff’s dereliction.

Reliance Insurance Company v. Alan (1990) 222 Cal. App. 3d 702, 272 Cal. Rptr. 65. Judgment is affirmed as to the coverage, but reversed as to the reimbursement issue. Issue: All risk yacht policy did not cover shooting death of woman living on insured’s yacht. But insurer was not entitled to reimbursement of defense costs incurred because theory of recovery was equitable restitution, and that theory had been uniformly rejected under similar circumstances.

Sanders v. Superior Court for Los Angeles (1973) 34 Cal. App. 3d 270, 109 Cal. Rptr. 770. Judgment: A writ of mandate issued. Issue: A party may be required to elect whether or not to call an expert as a witness and to disclose such an election to his adversary. The opposing party is to be granted reasonable time thereafter within which to conduct appropriate additional discovery.

Scott v. Continental Insurance Co. (1996) 44 Cal. App. 4th 24, 51 Cal. Rptr. 2d 566. Judgment reversed. Issue: Exclusion in property policy for latent defects excludes defects not readily discoverable and which are discoverable only by a searching examination. View full text

Security Mutual Casualty Co., v. Transport Indemnity Co. (1977) 66 Cal. App. 3d 1009, 136 Cal. Rptr. 365. Judgment affirmed. Issue: Insurer owes reinsurer obligation of good faith and fair dealing, and may not take affirmative action impairing subrogation rights of reinsurer.

Southern Insurance Co. v. Domino of California, Inc. (1985) 173 Cal. App. 3d 619, 219 Cal. Rptr. 112. Judgment for insurer affirmed. Issue: Insurer entitled to recoup payment made to insured on claim falling within policy exclusion for mere disappearance of property or loss or shortage of property disclosed on taking inventory.

St. Paul Fire and Marine Insurance Co., v. Murray Plumbing & Heating Corp. (1976) 65 Cal. App. 3d 66, 135 Cal. Rptr. 120. Judgment affirmed. Issue: Builder’s Risk insurer not entitled to subrogation from subcontractors based on indemnification provisions of subcontracts where the subcontractors were also insureds under the policy.

Stratton v. First National Life Insurance Co. (1989) 210 Cal. App. 3d 1071, 258 Cal. Rptr. 721. Judgment reversed. Original group health benefits insurer not permitted to deny coverage by transferring the insured’s policy to a second insurer at mid-risk.

Strickland v. Federal Insurance Company (1988) 200 Cal. App. 3d 792, 246 Cal. Rptr. 345. Judgment affirmed. Issue: All-risk homeowner’s policy covered cost of stabilizing soil of homes built on ancient landslide due to imminent peril. View full text

Transcontinental Rigging and Loading Corp. v. Great American Insurance Company (9th Cir. 1997) 1997 U.S. App. LEXIS 1113. Insurer not liable in bad faith because inland marine cargo insurance policy gives Great American the right, but not the obligation, to provide the insured with a legal defense.

Western Salt Company v. City of Newport Beach (1969) 271 Cal. App. 2d 397, 76 Cal. Rptr. 322. Judgment is reversed. Issue: Contributory negligence was grounds for the reversal.

Real Estate Published Decisions

Quevedo v. Braga (1977) 72 Cal. App. 3d Supp.1, 140 Cal. Rptr. 143. Judgment: Judgment affirmed. Issue: A breach of the implied warranty of habitability can only be raised as a defense in an unlawful detainer action, and may not be relied upon to establish a cause of action against a landlord. View full text

Wilson v. Abrams (1969) 1 Cal. App. 3d 1030, 82 Cal Rptr. 272. Judgment is affirmed. Issue: While exclusion of certain evidence of construction by the parties of the agreement creating the easement was erroneous, reversal was not required in view of the other evidence of the case.

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