CALIFORNIA SUPREME COURT

Insurance

Another Planet Entertainment, LLC v. Vigilant Insurance Co. (2024) _ Cal.5th _ , 2024 WL 2339132: The California Supreme Court answered a question posed by the Ninth Circuit Court of Appeal and also decided an issue where California Courts of Appeal had come to different conclusions regarding commercial property insurance policy coverage for COVID-19. The question posed by the Ninth Circuit was: “Can the actual or potential presence of the COVID-19 virus on an insured’s premises constitute ‘direct physical loss or damage to property’ for purposes of coverage under a commercial property insurance policy?” The Supreme Court answered: No, the actual or potential presence of COVID-19 on an insured’s premises generally does not constitute direct physical loss or damage to property within the meaning of a commercial property insurance policy under California law. (May 23, 2024.)

CALIFORNIA COURTS OF APPEAL

Arbitration

Lew-Williams v. Petrosian (2024) _ Cal.App.5th _ , 2024 WL 1404151: The Court of Appeal reversed the trial court’s order dismissing plaintiffs’ action, without prejudice, for failure to prosecute the case in arbitration after the trial court had granted a motion to compel arbitration. In April of 2020 plaintiffs filed their complaint alleging numerous causes of action, including conspiracy to convert and embezzle funds, financial elder abuse, and declaratory relief, breach of contract, negligence, bad faith, and unfair business practices. In July 2021, the trial court granted defendants’ motion to compel arbitration. In February 2023, the trial court dismissed the case for failure to prosecute the arbitration. The Court of Appeal disagreed and reversed. Once the trial court granted the motion to compel arbitration and stayed the action, it retained only vestigial jurisdiction over the case as provided in the California Arbitration Act (Code Civ. Proc., § 1281 et seq.), and the trial court did not have the power to dismiss the claims for failure to prosecute. If a party fails to diligently prosecute an arbitration, the appropriate remedy is for the opposing party to seek relief in the arbitration proceeding (and, if necessary, the opposing party may need to initiate the arbitration for this purpose). (C.A. 2nd, April 2, 2024.) 

Attorney Fees

Vines v. O’Reilly Auto Enterprises (2024) _ Cal.App.5th _ , 2024 WL 1751760: The Court of Appeal reversed the trial court’s order denying defendant’s motion to vacate a renewal of a judgment in the sum of $138,454.44. The issue was the amount of interest plaintiff was entitled to recover on an award of statutory attorney fees in an employment action. After obtaining a jury verdict of $70,200, plaintiff moved for $809,681.25 in statutory attorney fees. The trial court granted the motion on September 9, 2019, but awarded only $129,540.44 in fees. Plaintiff appealed and this fee award was reversed. Later, on June 29, 2022, plaintiff obtained an attorney fee award of $518,161.77. Defendant paid the fee award, including postjudgment interest from June 29, 2022. Plaintiff, however, was not satisfied, arguing he should get additional interest in the sum of $138,454.44 from the original attorney fee award on September 9, 2019. The Court of Appeal concluded that, because its decision in the earlier appeal was a reversal, not a modification, of the trial court’s September 9, 2019 fee award order, interest on the amount of attorney fees awarded should run from June 29, 2022, not from September 9, 2019. The trial court was directed to enter a new order granting defendant’s motion to vacate the renewal of judgment. (C.A. 2nd, April 24, 2024.)

Civil Procedure

Lorch v. Superior Court of San Diego County (2024) _ Cal.App.5th _ , 2024 WL 2205292: The Court of Appeal granted a writ petition seeking to overturn the trial court’s order denying plaintiff’s Code of Civil Procedure section 170.6 peremptory challenge to Judge Timothy B. Taylor, the judge newly assigned to preside over the trial of her case. Judge Taylor ruled that the peremptory challenge was untimely under the master calendar rule, which requires “a party to file a section 170.6 challenge to the judge supervising the master calendar not later than the time the cause is assigned for trial.” (§ 170.6(a)(2).) After denying the peremptory challenge and refusing to stay the trial, Judge Taylor immediately began a two-day jury trial, which resulted in a defense verdict and judgment in favor of defendant. Plaintiff then filed this petition within the statutory 10-day period. (§ 170.3(d).) The Court of Appeal held that plaintiff’s section 170.6 challenge was timely filed before the trial began, and rejected defendant’s laches argument claiming that plaintiff should have sought relief with the Court of Appeal before the trial started. The Court of Appeal also concluded that Superior Court of San Diego County, Local Rules, rule 2.1.3 (rule 2.1.3), which purports to provide any superior court judge with the power to act as a master calendar department for purposes of assigning cases for trial, was inconsistent with section 170.6 and case law interpreting the statute. The writ petition was granted with directions to vacate the void orders and judgment entered by Judge Taylor after denying the peremptory challenge. (C.A. 4th, May 16, 2024.) 



Torts

Howard v. Accor Management US (2024) _ Cal.App.5th _ , 2024 WL 1087719: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in plaintiff’s personal injury action. When plaintiff took a shower during a hotel stay, the handheld shower head fell apart, and plaintiff cut herself and fell, suffering severe injuries. The trial court properly granted summary judgment because plaintiff failed to raise a triable issue of material fact on the key issue of notice, and failed to establish the applicability of res ipsa loquitur. (C.A. 2nd, filed March 13, 2024, published April 3, 2024.) n