Developments of Interest

New Cases of Interest - December 5, 2011

Banner Photo


Nicholas Laboratories, LLC v. Chen (2011) 199 Cal.App.4th 1240.  In this case a former employee successfully defended against an action brought by the plaintiff, and then claimed a right to recover attorneys fees under statutory and contractual indemnity theories, particularly Labor Code §2802 and Corporations Code §317.

The Court of Appeal held that the provisions of those two code sections were not sufficiently broad to authorize a recovery of attorneys fees within the meaning of the word “indemnify” in first party disputes between employers and employees, and denied the employee’s request.

First Bank v. East West Bank (2011) 199 Cal.App.4th 1309.  This is a somewhat unusual situation where two deeds of trust on the same property were deposited with the Recorder’s office before business hours, and were both stamped as being filed and recorded at the same time on the same day.  The dispute between the two parties related to the priority of their respective deeds of trust.  The Court of Appeal held that under Government Code §1170, both deeds of trust were deemed to have been recorded simultaneously and that the two deeds of trust had equal priority.

Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199 Cal.App.4th 1336.  This was a hostile work environment case in which the employee claimed to have been subjected to gender harassment.  The Court however found that there was insufficient evidence that the behavior was either pervasive or severe enough to constitute a hostile work environment.  A single e-mail referring to the employee which was not intended to be shared publicly did not meet the necessary standard of proof.  The employee had also witnessed three incidents of gender based conduct involving co-workers over a span of three years, and the Court found that this was not sufficient to create a hostile work environment.

Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217.  The Court finds that a sponsor of a motorcycle ride qualifies for the protection offered by the assumption of risk doctrine.  Plaintiff had signed a release form prior to the event, and the Court found that the risk of being involved in a traffic collision while riding in the motorcycle procession on a Los Angeles freeway was apparent.  There was no increase in the danger resulting from the sponsorship by the defendant.

Vogt v. Herron Construction, Inc. (2011) 200 Cal.App.4th 643.  In this case a subcontractor had its employee move a personal motor vehicle of another subcontractor which was parked too close to a portion of the jobsite.  The employee who was moving the vehicle accidentally struck and injured the plaintiff.  The Court held that the injury occurred within the course and scope of employment and that the risk of injury was foreseeable because employees were allowed to park their personal vehicles at the worksite and therefore logically would have to move the vehicles when they got in the way of construction work.  Moving the vehicle in this case furthered the course of the construction project.  This was sufficient to allow the application of the doctrine of respondeat superior.

Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656.  This is the monthly SLAPP case and in this case a contractor brought a SLAPP motion seeking to strike a development company’s cause of action for slander of title.  The slander of title allegedly arose from the contractor’s recording of a lis pendens in an attempt to foreclose a mechanic’s lien.  After the motion to expunge the lis pendens was filed, a settlement was reached.  The development company subsequently filed the slander of title claim alleging that the lis pendens had been wrongfully recorded.  The SLAPP motion was granted.

The Court of Appeal affirmed the granting of the SLAPP motion, finding that the recording of the lis pendens was a privileged action.  There is no exception to the litigation privilege based on the asserted lack of evidentiary merit of the claim in real property against which a lis pendens is recorded.  Accordingly, there was no probability that could be shown by the development company of a chance of prevailing on the merits of the slander of title claim.

Related Attorney(s): 

Our attorneys have a rich tradition of giving back to the communities where we live and work.