CALIFORNIA COURTS OF APPEAL 

Arbitration

Suarez v. Superior Court of San Diego County (2024) _ Cal.App.5th _ , 2024 WL 256450: The Court of Appeal granted a writ petition directing the trial court to vacate its earlier order granting defendant’s motion to compel compliance with the existing arbitration order and denying plaintiff’s motion to vacate the stay, and to enter a new order granting plaintiff's motion and denying defendant’s motion. Plaintiff sued his former employer. Defendant filed a motion to compel arbitration and stay the legal action, which the trial court granted. Defendant, however, failed to pay its initial arbitration fee within 30 days as required by Code of Civil Procedure section 1281.97. The trial court ruled that defendant’s payment was timely because Code of Civil Procedure section 12 extended the payment date from January 1 to January 3, and also concluded that because the arbitration provider JAMS had emailed the invoice, Code of Civil Procedure section 1010.6 (a)(3)(B) extended the deadline 2 additional days to January 5, making defendant’s payment on January 4 timely. The Court of Appeal disagreed, holding that section 1010.6 did not apply to the e-mail transmission of a JAMS fee invoice. By its terms, the statute governs the service of documents in an action filed with the court. An arbitration proceeding is not an action filed with the court, and the invoice required by Code of Civil Procedure section 1281.97 is provided to the parties but is not served. (C.A. 4th, January 24, 2024.)   

Civil Procedure 

Di Martini v. Superior Court (2024) _ Cal.App.5th _ , 2024 WL 227975: The Court of Appeal granted a writ petition directing the trial court to grant petitioner’s motion to expunge a lis pendens. Petitioner agreed to sell real property to real party in interest Puga Gupta. Gupta won an arbitration award and filed a motion to confirm the award as a judgment. She also recorded a lis pendens. Petitioner filed a motion to expunge which the trial court granted because the action to confirm the award was not a real property claim and there was no request to quiet title. Gupta then filed a new action seeking to compel petitioner to complete the sale of the real property, and recorded another lis pendens. The trial court denied petitioner’s motion to expunge, concluding that Code of Civil Procedure section 405.36 only applies to successive lis pendens filed in the same action, and also concluding that Gupta established a prima facie case regarding the probable validity of a real property claim. The Court of Appeal disagreed, concluding that under section 405.36, because the Gupta lis pendens had been expunged in a prior related proceeding, Gupta was required to seek court permission before recording her lis pendens and the trial court erred in denying the motion to expunge. The trial court erred by applying a prima facie standard for determining whether Gupta established the probable validity of her real property claim. A trial court must order a lis pendens be expunged if the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim. (§ 405.32.) (C.A. 1st, January 22, 2024.)

Insurance

Myasnyankin v. Nationwide Mutual Ins. Co. (2024) _ Cal.App.5th _ , 2024 WL 340287: The Court of Appeal, in a consolidated action involving two appeals, affirmed the trial court’s order denying defendant’s demurrer to plaintiff’s complaint seeking a declaration of his rights regarding the video recording of an examination under oath (EUO) in Insurance Code section 2071.1 (a)(4), and reversed the trial court’s order denying plaintiff’s motion for attorney fees under Code of Civil Procedure section 1021.5. Defendant carrier demanded an EUO, but objected when plaintiff wanted to video defendant’s attorneys and claims representatives during the examination. Defendant refused to proceed with the EUO, asserting section 2071.1(a)(4) only permitted plaintiff to video record himself. Defendant also threatened to deny plaintiff’s claim unless he agreed to proceed with the EUO. Plaintiff then sued defendant seeking a declaration of his rights under section 2071.1. The Court of Appeal, ruling on an issue of first impression, held that the plain language, statutory framework, and legislative history all support a construction of section 2071.1(a)(4) granting insureds the right to make a video recording of the insurer’s representatives at an EUO. The Court of Appeal concluded that the trial court erred in denying plaintiff’s motion for attorney fees under Code of Civil Procedure section 1021.5, and remanded for the trial court to determine the amount of fees to be awarded. (C.A. 1st, January 30, 2024.)

Torts

Gilead Tenofovir Cases (2024) _ Cal.App.5th _ , 2024 WL 94462: The Court of Appeal affirmed in part, and denied in part, a writ petition seeking to overturn the trial court’s order denying defendant’s motion for summary judgment or summary adjudication. The 24,000 plaintiffs in this coordinated proceeding alleged they suffered skeletal and kidney damage or other adverse effects from taking defendant’s drug tenofovir disoproxil fumarate (TDF) to treat HIV/AIDS. Plaintiffs did not allege that TDF was defective. Instead they alleged that defendant was negligent due to its alleged decision to defer development of another drug tenofovir alafenamide fumarate (TAF), which had fewer adverse effects, to maximize its TDF profits. Plaintiffs also alleged a claim for fraudulent concealment, reasoning that defendant had a duty to disclose information about TAF to users of TDF. The Court of Appeal affirmed the trial court’s denial of the summary judgment as to negligence. It concluded that the legal duty of a manufacturer to exercise reasonable care can, in appropriate circumstances, extend beyond the duty not to market a defective product. Analyzing duty under Rowland v. Christian (1968) 69 Cal.2d 108, the Court of Appeal concluded that it was possible that plaintiffs could assert a claim for negligence, without proof of a defect, as to decisions the drug manufacturer made after obtaining the results of Phase III clinical trials of the alternative drug. However, the factual record before the Court of Appeal was not sufficient to determine whether or not such a duty had been breached. The Court of Appeal reversed the trial court’s denial of summary judgment on fraudulent concealment, concluding that defendant’s duty to plaintiffs did not extend to the disclosure of information about TAF. (C.A. 1st, January 9, 2024.)

Perez v. Oakdale Irrigation Dist. (2024) _ Cal.App.5th _ , 2023 WL 9113961: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in plaintiffs’ action for the wrongful death of decedents Hector Evangelista (husband and father) and Giselle Evangelista (daughter and sister). Decedents perished after a collision left their vehicle overturned in a drain where they drowned. Plaintiffs sued defendant on a theory the water level in the drain was, or resulted from, a dangerous condition of public property. The trial court granted summary judgment based upon the canal immunity in Government Code section 831.8 (b). The Court of Appeal affirmed, concluding that subdivision (b) only places a single limitation on state/irrigation district immunity for injuries caused by the condition of canals, conduits, or drains; immunity does not apply when the person injured was using the property for a purpose intended by the district or state. (C.A. 5th, filed December 20, 2023, published January 8, 2024.)