Developments of Interest

New Cases of Interest - September 1, 2011

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Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927.  After a verdict was entered against defendants, the defendants filed motions for a new trial and for judgment notwithstanding the verdict, but provided only cursory citations to relevant statutory provisions and offered no statement of facts of the case that supported the verdict, no identification of evidence or arguments challenging the sufficiency of the evidence relied on, and no discussion of how the damages awarded were excessive.  The trial court denied the motions because of noncompliance with the Rules of Court.  The Court of Appeal affirmed, holding that Rule 3.1113 applies to post-trial motions and that the trial court was justified in declining to look beyond the failure to comply with the Court Rule.

Cabrera v. Alam (2011) 197 Cal.App.4th 1077.  This is a SLAPP case.  The former president of a homeowners association board of directors sued another candidate for defamation based on statements made at the association’s annual meeting immediately before the members elected the board of directors.  While the trial court had denied the defendant’s SLAPP motion, the Court of Appeal reversed.  The court found that the defendant had carried his burden of proof in showing that the defamation claim was based on protected activity because it was made in a public forum at a homeowners association annual meeting and concerned an issue of public interest, namely the qualifications of a candidate for office in the association.  Plaintiff then failed to carry her burden of showing a probably of prevailing on the merits of the defamation claim.  Plaintiff was a limited purpose public figure the court found and was required to therefore show that the defendant made the defamatory statements with malice, and plaintiff failed to provide any evidence so indicating.

Phillips, Spallas & Angstadt, LLP v. Fotouhi (2011) 197 Cal.App.4th 1132.  Judgment creditors obtained a charging order requiring both a corporation and a partnership to make payments to the judgment creditors resulting from the judgment debtor’s interest in the partnership.  The judgment debtor had started a partnership, and the partnership then began doing business as a corporation which took over the partnership’s office lease and continued to operate in the same location.  The court applied principles of successor liability and found that the corporation was simply a continuation of the partnership, and the Court of Appeal upheld that finding, also holding that the court had authority to issue the order because there was no statutory limitation limiting the entities against which a charging order could be applied.  See Code of Civil Procedure § 708.310 and Corporations Code § 16504(a).  The court found that Code of Civil Procedure § 187 provided further authority to apply the charging order to a corporation as a practical means of enforcing the trial court’s order.

Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146.  A partnership which provided professional medical services brought a lawsuit against its medical malpractice insurance carrier.  The insurance policies included an arbitration clause.  An underlying medical malpractice lawsuit had resulted in a verdict in excess of the policy limits and the insureds alleged a failure by the insurance carrier to settle the claim.  The insurer brought a motion to compel arbitration which the insureds opposed.  The Court of Appeal reversed a trial court order and required that the matter proceed to arbitration.  The court held that because the insureds allegedly did not read the insurance policies which contained the arbitration provision, did not allow them to thereby avoid arbitration.  The arbitration provision was clear and conspicuous and this language was understandable.  It was also specifically referenced in the table of contents to the insurance policy.  It was not unconscionable and therefore the petition to compel arbitration should have been granted.

Ferguson v. City of Cathedral City (2011) 197 Cal.App.4th 1161.  In this case a police officer brought a petition for writ of mandate challenging the termination of his employment.  The officer had earlier been arrested and in connection with the arrest was also served with a discharge notice concerning his employment.  He agreed to serve a suspension and waive his right to an administrative appeal in exchange for the employer’s agreement to rescind his discharge from employment.  He also agreed to take all reasonable steps to bring the criminal proceedings to an expeditious conclusion and agreed he would resign if convicted of certain specified offences.  While the criminal charges were still pending thereafter, the employee advised his employer that he considered the agreement null and void.  The city employer then responded by accepting the repudiation of the initial agreement, and proceeding to terminate the employee.  The court found that the letter of the employee’s attorney to the employer was an anticipatory repudiation and the employer could properly elect to reinstate the earlier discharge of the employee.  Additionally, the conduct of the employee warranted termination and due process had been adequately provided.

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