Developments of Interest

New Cases of Interest - April 29, 2014

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Ellis v. US Security Assoc. (2014) 224 Cal.App.4th 1213.  This is an action in which an employer had within an employment application a provision that any claim or lawsuit with respect to any employment action had to be brought within 6 months of the events and that the employee waived the statute of limitations.  The Court of Appeal held that the shortened limitation period violated public policy because it had the potential effect of encouraging discriminatory practices.  In doing so the court noted that while a contractually shortened limitations period can be found to be reasonable, if the plaintiff has sufficient opportunity to investigate and file an action, this rule generally applies in commercial contracts and other types of contractual breaches.  The court felt 6 months isn't enough time for the pursuit of a judicial remedy in discrimination cases or other employment cases involving public policy, where the statutory limitation period can be as long as 3 years, and the 6 month period was therefore unreasonable in that it also precluded meaningful participation by the governmental agencies which had been set up to investigate discrimination in public policy claims.

McCaffrey Group Inc., v. Sup. Ct. (2014) 224 Cal.App.4th 1330.  The court finds that a builder may compel homeowners to comply with a contractual nonadversarial prelitigation procedure, in that the homeowners had not met their burden of establishing that such a procedure was unconscionable.  The procedure specified that the builder was to be given notice of the claimed defect and a right to inspect and correct it and if the homeowner was unsatisfied, the homeowner was then required to engage in nonbinding mediation.  While these procedures were not the same as those contained in the Right to Repair Act (Civil Code 895, et seq.), they were not to be deemed to be unconscionable merely because they did not include the same requirements.

Cansino v. Bank of America (2014) 224 Cal.App.4th 1462.  In this case a borrower in a refinance situation sought to bring an action against a lender for fraud and violation of California's unfair competition law on the theory that the lender had made representations that the borrower's property would continue to appreciate in the future and the buyers could then sell or refinance their home based on that forecasted future appreciation.  The court held that such representations were not actionable as a matter of law because any type of future market forecast must be regarded not as fact but as a prediction or speculation.  The court also found that the allegations were deficient in that an appraisal was prepared but it wasn't indicated by who or what the degree of the lender's responsibility might have been for that appraisal.  The court also found that the borrower's determination that their home was worth less in 2010 than had been represented in 2005 didn't demonstrate that the 2005 appraisal was a misrepresentation.

City of San Jose v. Sup. Ct. (2014) 225 Cal.App.4th 75.  This case is somewhat significant in terms of what constitutes a "public record" within the meaning of the California Public Records Act.  The court holds that public records do not include email communications between city officials which are sent from their private email accounts and not city accounts because there was no evidence to demonstrate, at least on the facts of the case presented, that the City had control over those personal accounts.

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