Developments of Interest

New Cases of Interest - November 29, 2010

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Holmes v. Summer (2010) 188 Cal.App.4th 1510.  A real estate buyer brought an action against the real estate brokers who had represented the seller alleging that the seller’s broker was aware that the existing debt on the property far exceeded the purchase price, and had a duty to disclose that fact to the buyer.  The Court of Appeal reversed the Trial Court and found that such a duty existed.  Although the seller’s agent generally doesn’t owe a fiduciary duty to a buyer, in this instance the seller’s agent was found to owe the buyer duties of care, honesty, good faith, fair dealing and disclosure, as reflected in Civil Code Section 2079.16 which was sufficient to require that when the broker was aware that the monetary liens and encumbrances exceed the sales price of a residential property, so that the cooperation of a lender(s) would be required in a short sale, the seller’s broker had a duty to disclose these facts to the prospective buyer.

County of Siskiyou v. State Personnel Board (2010) 188 Cal.App.4th 1606.  The State Personnel Board reduced a penalty for misconduct by an employee from termination to a two month suspension.  The employee was an eligibility worker in the employment and temporary assistance services division of the County’s Department of Human Services, and in that capacity was acquainted with a parent who was involved in a custody dispute.  The employee submitted a declaration in which she praised the parental schools of the parent that she was acquainted with through her employment position.  The agency did not have a policy which precluded employees from submitting declarations on behalf of clients or acquaintances.  The declaration was not on the agency’s letterhead and did not purport to be made on behalf of the agency.  The Court held that the State Personnel Board had made a reasonable determination and an implied finding that the employee was not intentionally deceitful but simply failed to understand that her declaration could be misconstrued, and accordingly a discharge from employment as a penalty for dishonesty was inappropriate.

Baharian-Mehr v. Smith (2002) 189 Cal.App.4th 265.  This is a SLAPP case.  A partner in an adult entertainment business sued his co-partners for an accounting, breach of fiduciary duty, constructive fraud and other relief.  The defendants brought a SLAPP motion which the Trial Court found to have been frivolous, and ordered the defendant to pay attorneys fees to the plaintiff.  The Court of Appeal affirmed because the Complaint did not arise from any protected activity, and could not reasonably be construed has having done so, but arose instead from a business dispute between the parties.  To the extent that any protected activity was mentioned, it was purely incidental to the thrust of the plaintiff’s action.

Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College District (2010) 189 Cal.App.4th 330.  This is a case in which a former community college administrator sought a writ of mandate seeking an order to be reinstated to an administrative position that the employee had held and also sought back pay.  The Court of Appeal relying on Barthuli v. Board of Trustees held that the administrator did not have a right to reinstatement and could have brought an action for breach of contract which would justify back pay, but did not do so.  However, the Community College did not oppose procedurally the Trial Court’s granting of a writ of mandate for back pay, although the Trial Court had denied reinstatement, and the Court of Appeal therefore allowed the back pay award to stand. 

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